Tag: contract

What does an election year, Cllr Phil Davies, the Schools PFI contract, Lyndale School and the Wirral Schools Forum have in common?

What does an election year, Cllr Phil Davies, the Schools PFI contract, Lyndale School and the Wirral Schools Forum have in common?

What does an election year, Cllr Phil Davies, the Schools PFI contract and Lyndale School have in common?

                                                 

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 which was reviewed by the Coordinating Committee on 2nd October 2014 L to R Cllr Stuart Whittingham, Cllr Tony Smith (Cabinet Member for Children and Family Services), Cllr Bernie Mooney and Lyndzay Roberts

Added at 8/10 12:04 In response to a reader comment about this article, I am at the start of this adding a declaration of interest, in that my wife Leonora has the liability for Council Tax at the property we both reside. Council Tax is mentioned in this article. However it is already public knowledge that we both reside on the Wirral.

Earlier this year on the 16th June 2014 I made a FOI (Freedom of Information Act) request to Wirral Council for the PFI (private finance initiative) contract Wirral Council has for various schools (eight secondary, one primary and two City Learning Centres). That request was turned down on 9th July 2014 with the Council claiming section 43 (commercial interests) applied to the information. I requested an internal review of that decision on 9th July 2014 and am still waiting three months later for the result of that internal review!

In August 2014, as part of the 2013/14 audit using a right I have under s.15 of the Audit Commission Act 1998, I also requested a copy of the Schools PFI contract.

The next month (September 2014) I was asked to come and collect a paper copy of the contract from a Wirral Council building in Hamilton Square, Birkenhead, which it later turns out is incomplete and missing at least a few hundred pages (which I suppose is to be expected when you’re dealing with Wirral Council)!

One of the duller sides of journalism and blogging is the amount of reading you have to do to write properly about the topics you’re writing articles on. An alternative route is to just use a lot of quotes from experts. After all when I write about matters, people leave comments and sometimes ask follow-up questions in the comments or by email so I try and familiarise myself with the topic I’m writing about first so this can be easily done. This contract runs to 2031, costs ~£12 million a year and is with a company called Wirral School Services Limited (and others).

The day before yesterday I ploughed through the rest of the Schools PFI contract Wirral Council has with Wirral Schools Services Limited (at least the bit of it I have and isn’t missing). Some of the is haven’t been dotted and the ts crossed on the pages I have and there is a large chunk of it that is missing there are some bits I am unsure of. I’ve asked for the rest but how long that will take I’m not sure!

The contract has many boring details that even I find dull to read that I hope even you dear reader would not really find particularly interesting, such as details about school boilers, how many square metres rooms are in various schools on the Wirral & what colours the hot and cold water pipes are (although knowing my luck I’ll end up with a comment from an interested heating engineer telling me how much they’d love to read a detailed article about the building maintenance side of schools).

The Schools PFI contract also has the level of detail of the full names, NI numbers, dates of birth and other details of various employees employed to work at these schools such as cleaners and other staff. Wirral Council also runs the multi-£billion Merseyside Pension Fund, so there is an admission agreement with Merseyside Pension Fund to do with pension rights. There are pages and pages of details about staff as part of an admission agreement with Merseyside Pension Fund. I will however not be publishing such detailed information on living people as it would be a goldmine for ID fraudsters and the height of irresponsible journalism to publish dates of birth, NI numbers and names for large numbers of people!

In order to explain, I need to first write a summary about what this Schools PFI contract is about. This is based mainly on the index.

Part of it is a series of leases to Wirral Council for nine schools and other type of educational premises called city learning centres covered by the contract. At the end of the contract (2031 or earlier if the contract is terminated or modified) ownership of the schools and City Learning Centres reverts back to Wirral Council. Part of the contract is also for services provided at the schools and City Learning Centres such as school meals, caretaking, repairs to the buildings et cetera. Some information on this goes to the schools themselves, some to Wirral Council. There is also a joint liaison committee set up with people from Wirral Council and the contractor.

There are also variations within the contract to account for differences between the schools, for example from memory* (*the caveat is I don’t always remember things correctly and haven’t double checked this against the contract again) I think Leasowe Primary School uses a slightly different system for school meals to the other secondary schools.

Some of the contract also relates to transitional provisions from the previous supplier Jarvis. This applied really in the early stages of the contract.

It’s all very long and very complicated and unless you have an interest in the area or are involved with Wirral Council, one of the nine schools (which are Leasowe Primary, Bebington High, University Academy of Birkenhead (formerly called Park High), South Wirral High, Weatherhead High, Hilbre High, Prenton High, Wallasey High and Wirral Grammar Girls) or two City Learning Centres (Wallasey City Learning Centre and Hilbre City Learning Centre) involved or the contractors in some way it’s probably not very interesting to you. It also interestingly falls into the set of contracts that Wirral Council will be legally required to publish at some future stage in the coming weeks.

The contract is so long and heavy (even with the missing pages) that I had to familiarise myself with our manual handling procedures just to figure out how to lift it up (and am grateful to myself that I didn’t drop it on my foot).

The first section marked “Private and confidential” is an agreement between Wirral Borough Council [1] and Wirral Schools Services Limited [2] dated 9/9/2004 and is called “Deed of Amendment and Restatement relating to Wirral Schools PFI project”. Addleshaw Goddard (a law firm) are mentioned at the bottom which are I presume are the law firm that drafted it. This section is 10 pages. This was when it was renegotiated in 2004.

So Section 1 – “Deed of Amendment and Restatement relating to Wirral Schools PFI project” 9/9/2004 10 pages

Then there’s section two, which is a “CONFORMED COPY” of a project agreement dated 27/3/2001 between Wirral Borough Council and Wirral Schools Services Limited which was amended and restated pursuant to the “Deed of Amendment and Restatement” (I’ve just mentioned) dated 9/9/2004. Rowe & Maw or 20 Black Friars Lane, London are at the bottom of the title page, their ref is 617/343/476/27909.1. Rowe & Maw were a legal firm based in London, they then became Mayer, Brown, Rowe & Maw in 2002 and in 2007 shortened their name to Mayer Brown. Apparently now they are the 22nd largest law firm in the world.

Section 2 – “Project Agreement amended and restated pursuant to a Deed of Amendment and Restatement dates 9/9/2014” dated 27/3/2001 198 pages

Schedule 1 (Volume 1 of the schedules) between Wirral Borough Council and Wirral School Services Limited is mainly series of headleases and underleases for various schools:

Pt 1 Bebington Headlease (16 pages and refers to Land Registry title MS435412)
Pt 2 Hilbre Headlease (16 pages and refers to Land Registry title MS435411)
Pt 3 Park High Headlease (15 pages and refers to Land Registry title MS435414)
Pt 4 Prenton High Headlease (8 pages) * note the copy I have been given is partially incomplete as this is missing pg 9 and schedules 1-4
Pt 5 South Wirral High Headlease (15 pages and refers to Land Registry MS435824)
Pt 6 Wallasey Headlease * missing
Pt 7 “Not used”
Pt 8 Weatherhead Headlease * missing
Pt 9 Wirral Girls Headlease * missing
Pt 10 Bebington Underlease * missing
Pt 11 Hilbre Underlease * missing
Pt 12 Park High Underlease * missing
Pt 13 Prenton High Underlease * missing
Pt 14 South Wirral High Underlease * missing
Pt 15 Wallasey Underlease * missing
Pt 16 “Not used”
Pt 17 Weatherhead Underlease * missing
Pt 18 Wirral Girls Underlease * missing
Pt 19 Plans * missing

This comes to only 55 pages supplied out of an estimated 280 which is hardly a way for a Council to comply with its requirements under the audit legislation is it!? Hopefully they treat Grant Thornton (their external auditors better than this)!

Schedule 2 and 3 following it are then completely missing. I wonder at times if Wirral Council can’t do something simple like actually making a copy of a contract for the purposes of the 2013/14 audit without messing it up, what else are they getting wrong (are they deliberately trying to hide something)?

These are:

Schedule 2 Financial Matters * completely missing all parts 1-8
Part 1 Lenders Direct Agreement * missing
Part 2 The Council’s Design and Building Contract Direct Agreement * missing
Part 3 The Council’s Support Services Management Direct Agreement * missing
Part 4 Design and Building Contract Performance Guarantee * missing
Part 5 Support Services Management Agreement Performance Guarantee * missing
Part 6 Initial Senior Funding Agreements * missing
Part 7 Other Initial Funding Agreements * missing
Part 8 Rules for Refinancing * missing

Schedule 3 Works * completely missing parts 1-10 and appendices
Part 1 Design Development Procedure * missing
Part 2 Prohibited Materials * missing
Part 3 Schedule of Key Dates * missing
Part 4 Outline Design Documents * missing
Part 5 The Completion Standards * missing
Part 6 Decant Programme Methodology * missing
Appendix 1 Decant Programme: Park High * missing
Appendix 2 Decant: Further Obligations * missing
Part 7 Handback Requirements * missing
Part 8 Project Programme * missing
Part 9 Construction Site Rules * missing
Part 10 Handback Survey * missing

Schedule 4 between Wirral Borough Council and Wirral School Services Limited is to do with Payments and is split into:

Cover pages (2)
Part 1 Definitions (11 pages, definitions from “Agreed Market Testing Proposal” to “Zone Drawings)
Part 2 Services Contract Payment (5 pages)
Part 3 Performance Deduction Look-up Table (1 page)
Part 4 Table of Service Units per School (1 page) GSUs for each school totalling 28,047 GSUs
Part 5 Monitoring (7 pages)
Part 6 Utility Services (5 pages)
Part 7 Third Party Use (4 pages) dealing with issues such as vending machines
Part 7A Catering (6 pages)
Part 8 Value for Money Testing (12 pages)
Appendix 1 Form of Performance and Payment Report (45 pages) These are examples of the payment reports that go to each school either from Jarvis Workspace FM or Wirral Schools Services Limited.

Schedule 5 is the Accommodation Services Output Specifications (82 pages long)

Schedule 6 is the Support Services Output Specifications
Part 1 Building and Asset Management Output Specifications (12 pages)
Part 2 Support Services Requirements and Performance Tables (59 pages)
Part 3 Service Level Agreements (such as control of pests) (141 pages)
Part 4 Service Level Agreements Alteration Procedure (4 pages)

Schedule 7 Reports and Records
Part 1 Reports (3 pages)
Part 2 Records (2 pages)

Schedule 8 Variations
Variation Notice (1 page)

Schedule 9 Insurance (2 pages)
Part 1 The Part 1 Insurance Period (10 pages) deals with construction all risks, business interruption insurance & public liability insurance
Part 2 The Part 2 Insurance Period (8 pages) deals with property all risks insurance, business interruption insurance & public liability insurance
Appendix 1 Endorsements (4 pages)
Appendix 2 Broker’s Letter of Undertaking (4 pages)
Appendix 3 Business Interruption Insurance – the Authority’s Obligations as Insurer (4 pages)
Appendix 4 Schedule of Insured Parties (2 pages)

Schedule 10 Liaison Committee (4 pages)

Schedule 11 Compensation on Termination
Part 1 Definitions (6 pages)
Part 2 Project Co Default (6 pages)
Part 3 Authority Default (2 pages)
Part 4 Notice by the Authority (8 pages)
Part 5 Fore Majeure, Uninsurability and Planning Challenge (1 page)
Part 6 Corrupt Gifts (1 page)

Schedule 12 Dispute Resolution Wirral Borough Council & Wirral School Services Limited
Cover pages (2 pages)
Dispute Resolution (9 pages)

Schedule 13 Senior Representatives (1 page)

Schedule 14 Compensation Events (2 pages)

Schedule 15 Methodology for Asbestos (2 pages)
Appendix 1 MB Wirral Policy (16 pages)
Appendix 2 Asbestos Survey Risk Assessment (6 pages)

Schedule 16 Liquidated Damages (2 pages)

Schedule 17 Quality Systems
Part 1 Design and Build Period Quality System (24 pages)
Part 2 Operational Period Quality System
Appendix 1 A Quality Policy (1 page)
Appendix 2 B Certificate of Approval (2 pages)
Appendix 3 C Proposed QA Implementation Plan (1 page)
Appendix 4 D Contact Directory (1 page)
Appendix 5 E Local Procedures (1 page)

Schedule 18 Employees
Part 1 Employee Information (6 pages)
Part 2 Terms and Conditions of Employment (1 page)

Schedule 19 Admission Agreements and Bonds
Part 1 Jarvis Workspace FM Limited (Wirral Borough Council and Jarvis Workspace FM Limited and Wirral Schools Services Limited) Merseyside Pension Fund Admission Agreement with Transferee Admission Body (15 pages)
Part 2 Compass Group PLC
(Wirral Borough Council and Compass Group PLC and ??? ) MPF Admission Agreement with Transferee Admission Body (12 pages)
(Wirral Borough Council and Compass Group PLC and ???) Agreement for a bond and indemnity in respect of sums due under an admission agreement arising from the premature termination of a best value arrangement (8 pages)
Part 3 MTL Commercial Limited (22 pages)

Part 3 is an admission agreement to the Merseyside Pension Fund between Wirral Borough Council, MTL Commercial Limited and Merseyside Pension Fund from 2001. This also relates to an unfilled in guarantor (which I will have to assume is Compass Group PLC), MTL Commercial Limited and Wirral Borough Council as well as a bond and indemnity. This admission agreement also relates to Jarvis Workspace FM Limited. This is one of the schedules which includes pages and pages and pages of staff surnames (organised alphabetically by staff surname), initials for staff names, NI (National Insurance) numbers, post titles, pension and birth dates et cetera. However on the copy I was supplied with much has been left incomplete such as the date the agreement was agreed in 2001, the office address of MTL Commercial Limited and much other detail is missing too such as director and secretary signatures.

The end of schedule 19 is an agreement between Wirral Borough Council and MTL Commercial Ltd and ???? which is titled “Agreement for a bond and indemnity in respect of sums due under an admission agreement arising from the premature termination of a best value arrangement”. This too is incomplete and unsigned.

Schedule 19 – Admission agreement (Merseyside Pension Fund/ Wirral Borough Council/MTL Commercial Limited) – 22 pages

Schedule 20 is a one page staff security protocol which details the information staff have to provide on any criminal matters and also references they have to provide before getting a job. There is also information detailed here that they have to provide to their employer during their employment if things change.

Schedule 21 is “operational site rules” – 19 pages long

Schedule 22 is a “draft transitional services agreement” which is an agreement for the supply of transitional services between Wirral Borough Council and Jarvis Workspace FM Limited which is 145 pages long

Schedule 23 is about the City Learning Centre (8 pages long)

Schedule 24 is the “non moveable equipment schedule of rates” (5 pages)

***

As the contract is so long, has been supplied incomplete and falls within the category that Wirral Council should be publishing within a matter of weeks, I won’t be scanning in the whole contract and publishing it! If there are any sections you would like me to publish though (that aren’t in the missing sections) please leave a comment or send me an email.

It is going to be discussed at the Wirral Schools Forum meeting tonight as the Wirral Schools Forum is being asked to make £2.3 million of in year savings to pay for it (which is in addition to the £600,000 of savings made earlier this year to pay for PFI), see report of Julia Hassall (Director of Children’s Services) here and an appendix showing its effect (if agreed) on the 2014-15 Schools Budget.

Just to make it clear the amount paid under the PFI contract isn’t going up by £2.5 million a year as it’s pegged to increases based on RPI.

The ratio between December 2013 RPI and December 2012 RPI was an increase of 2.674%.

There is then an “efficiency factor” of 10% built into the contract.

So, 90% * 2.674% = 2.4066%

So the yearly increase this year in PFI costs is in the region of ~£289,000 . Next year’s increase will be known when the RPI data for December 2014 is published.

So why ask is the Wirral Schools Forum being asked to make £2.3 million of cuts in year (2014-15), in addition to the £600,000 of cuts earlier this year for the Schools PFI contract then and what is this actually going to fund instead?

Well last year there was a 0% rise in the Council Tax (after a budget was prepared a few months before showing a 2% rise). Yes a freeze on Council Tax means Wirral Council got a grant which equates to a 1% rise. I presume for the financial year 2015/16 based on statements previously made by Cllr Phil Davies that senior officers at Wirral Council are also planning for a 0% rise for 2015/16 (although we’ll all find that out for sure over the next few months at a Council meeting as plans are sometimes subject to change).

It’s also interesting to note that Cllr Phil Davies (who is the Cabinet Member for Finance/Leader of the Council) four year term of office comes to an end in May 2014 so this is an “election year” for him (presuming he wishes to stand again which by all the recent press articles about Cllr Phil Davies related to Birkenhead & Tranmere means it is likely that Labour have picked him as the candidate for this area already). What better way for Cllr Phil Davies to get himself elected by telling the voters of Birkenhead and Tranmere that he has frozen their Council Tax (helpfully leaving out in leaflets to the voters in Birkenhead and Tranmere the inconvenient facts that this will come at the expense of cuts made this year (pending Wirral Schools Forum approval) to the money spent on pupils with a disability, statements, support for Special Educational Needs, maintenance of school buildings, axing funding for the School Sports Coordinator & use of swimming baths (although this two last items may be funded in future by schools directly themselves through the traded services) and other in year cuts to the Schools Budget)? Oh and also another inconvenient truth that thanks to cuts made by his Cabinet to Council Tax support many in Birkenhead & Tranmere are now having to pay 22% of their Council Tax bill whereas previously they had to pay nothing as 100% of their bill was covered by Council Tax Benefit?

After all, if Cllr Phil Davies is challenged between now and the elections in May about why he is making all these cuts by presumably the Conservatives, Lib Dems or Green Party, he based on past experience of his answers to this very question will probably blame the need to make any cuts to Wirral Council’s budget on the Coalition (Tory and Lib Dem) government, which of course absolves himself of any responsibility for these “difficult decisions”. This is of course is conveniently leaving out the fact that:

a) Wirral Council decides itself whether it wants to freeze Council Tax, rise it or decrease it each year. There is a majority Labour administration in charge of Wirral Council since 2012 so they make these decisions on the budget, Labour decided the 2013/14 budget, the 2014/15 budget and will decide the 2015/16 budget. If Labour want a Council Tax rise over x%* (a figure set by the government each year which was set last year at 2%) they have to win a referendum of the people and
b) that these are all locally made decisions over how the money is spent and that he’s the Cabinet Member for Finance (therefore he is the politician with democratic accountability to the public (and other politicians) for tax and spending decisions).

Of course there are some that would also say that these plans have come from senior officers at Wirral Council, not the Cabinet Member himself and will ask well is it a case of the officer tail wagging the Labour dog instead of the other way round? However senior officers at Wirral Council and politicians do surprise, surprise work together! These large in year changes to the agreed budget do also show as Cllr Stuart Kelly (Lib Dem audit spokesperson) quite recently pointed out at a recent public meeting that in his opinion this year’s (14/15) budget isn’t stable if changes are being made in year!

In fact at this point a £3 million overspend is predicted by the end of the year! I’m also curious as to why the date of the next Council meeting has been shifted from the 13th October 2014 to 20th October 2014. I’m sure it can’t be just because I tabled a question and they need an extra week to answer! If anyone knows the answer to that mystery please leave a comment?

Here’s an interesting question that stems from all this though. Despite the flim flam and contradictory statements over Lyndale School, is the price of Cllr Phil Davies getting reelected in May 2015 in Birkenhead & Tranmere the closure of Lyndale School (in Eastham) or is he just “rubber stamping” plans of senior officers?

After all the closure of Lyndale School currently pencilled in for January 2016 (if agreed by Cabinet later this year) won’t actually happen until after the May 2015 elections have taken place.

Can the many Labour councillors on Wirral Council seriously sleep at night knowing all this or are some behind closed doors expressing their disquiet about how this has played out in private meetings (especially the ones facing the electorate in May 2015)? Are Labour councillors worried that being directly involved in a decision about Lyndale (whether Cabinet or call in) will either affect their ability to be reselected by their fellow party members or indeed their future election prospects when they face the public at election time? Does this also explain why so many Labour deputies were sent to the Coordinating Committee meeting about Lyndale School last week? It’s all very mysterious isn’t it as one can only guess at what happens behind closed doors!?

I know the Cabinet decision to consult on axing Children’s Centres (currently on hold due to Conservative councillors calling it in) isn’t going down well with some Labour Party members (to put it mildly). That decision (made in the last few weeks by Cabinet) “called in” by Conservative councillors (Councillor Paul Hayes seems to be fast becoming the “call in councillor” and is going to be reviewed at a special meeting of the Coordinating Committee on the 15th October 2014 starting at 5.00pm (you can read the papers for that decision here).

Will Labour councillors decide that enough is enough when it comes to children’s centres, or will they agree with the Labour Cabinet and agree to start a consultation on closing them?

We’ll just have to wait and see! Please leave a comment on the above as I am interested to read your views!

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks:

Marvin the Martian returns to try to understand the incredible Lyndale School situation and the £1 million SEN budget cut

Marvin the Martian returns to try to understand the incredible Lyndale School situation and the £1 million SEN budget cut

Marvin the Martian returns to try to understand the incredible Lyndale School situation and the £1 million SEN budget cut

                                                  

Marvin the Martian from Disney's Looney Tunes
Marvin the Martian from Disney’s Looney Tunes

The below is a fictional interview with Marvin the Martian about Lyndale School. Marvin the Martian is trademarked to Warner Brothers Entertainment. Our legal team point out their trademark doesn’t actually cover its use on blogs but in case they try to argue this blog is an “entertainment service”, it isn’t, so no laughing! Yes I mean it, not even a smile! We also point out it’s not an infringing use of class 9 of this trademark as that refers to its use on goods rather than virtually.

We rely on s.30 of the Copyright, Designs and Patents Act 1988 and class this as “fair dealing” due to the acknowledgement above. As the The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 have come into force earlier this month, we’ll rely on this too and the new section 30A on parody.

JOHN BRACE: Thanks once again for agreeing to be interviewed about Lyndale School. We asked Wirral Council for a meeting about Lyndale School but they declined.

MARVIN THE MARTIAN: You’re welcome. Well that is a shame I was looking forward to finally meeting people from Wirral Council that I have seen on your video broadcasts. Why do your politicians think they can get away with making decisions like this?

JOHN BRACE: They believe they’re doing the right thing in making “difficult decisions” that are “unpopular”. Also many are what’s in “safe seats”, and many of them (if they choose to do so) will not have to face the public in an election for many years to come.

MARVIN THE MARTIAN: But they’re still subject to laws right, that meeting last Thursday the people making the decision didn’t have the required statutory guidance for decision makers which includes the SEN Improvement Test as part of the papers for that meeting?

JOHN BRACE: Well the politicians could have adjourned the meeting and received the correct documents but they chose not to. However you can’t expect politicians to know what they’re doing. They’re elected to look at things from the public perspective and rely on officer advice in such matters. Anyway preparing the papers for a meeting is an officer function in consultation with the Chair.

MARVIN THE MARTIAN: You can’t blame this on the committee services officer Lyndzay Roberts though as she only includes in the papers for the meeting what she’s been given in time for it to be published and on that subject why do they keep picking the committee services officer who is a wheelchair user for the Lyndale School meetings?

JOHN BRACE: I’m afraid I can’t read people’s minds and would prefer not to answer that question.

MARVIN THE MARTIAN: Ahh the “Lynn Wright” defence eh? How much do you get paid then?

JOHN BRACE: Not enough to be answering questions from fictional characters about difficult subjects and I’m assuming your second question is a joke! I know what I got paid last year, so does HMRC. I can estimate what I will get paid this year but as I’m on a fixed amount plus an element that is related to performance, I literally could only tell you it’s above £x,xxx/year. I’m also not sure if you mean gross or net salary as a certain proportion of my earnings I don’t get as they are paid in taxes. I have income from sources other than my salary though.

MARVIN THE MARTIAN: Ha ha! OK, I won’t pry too much! Back to Lyndale, what was decided on Thursday?

JOHN BRACE: To uphold the Cabinet decision of 4th September 2014 on a majority 9:6 vote.

MARVIN THE MARTIAN: And remind me what the Cabinet decision of 4th September 2014 was?

JOHN BRACE: Following the first consultation, to have a further second (but different) consultation on closure.

MARVIN THE MARTIAN: I thought they’d just had a consultation!

JOHN BRACE: This is a similar but different sort of consultation.

MARVIN THE MARTIAN: OK, I never realised closing down a school was made so complicated!

JOHN BRACE: A final decision on closure has not yet been made. This is just an “in principle” decision on closure.

MARVIN THE MARTIAN: And how much is this all costing?

JOHN BRACE: Who knows? The school closure/retirement costs budget for this year is £326,000. However it looks like £200,000 of that will be moved to another budget heading soon.

MARVIN THE MARTIAN: Which budget heading?

JOHN BRACE: PFI (private finance initiative).

MARVIN THE MARTIAN: Why’s that?

JOHN BRACE: Well you always have to plan for the worst and hope for the best with school closures, extra call in meetings, delays, legal challenges et cetera. Sometimes that means budget allocated goes unspent which can be used for other things.

MARVIN THE MARTIAN: So they’re not going to use a £200,000 underspend on the school closure budget to keep Lyndale open another year (costing ~£190,000)?

JOHN BRACE: No, pending a decision by the Wirral Schools Forum an underspend on the school closure budget will be spent instead next year on the ~£12 million a year PFI contract.

MARVIN THE MARTIAN: OK, so when does this second consultation on closing Lyndale School start?

JOHN BRACE: Wirral Council officers had authorisation to proceed with implementation of the Cabinet decision of 4th September 2014, once the call in ended on 2nd October 2014. This has been delegated by the Cabinet to Julia Hassall to implement.

Regulation 8 of the Openness of Local Government Bodies Regulations 2014 will require Wirral Council to publish a notice on their website shortly after Julia Hassall implements this decision. This public notice has to contain the date of the decision, a record of the decision and reasons, details of any alternative options considered and rejected and the names of any of the Cabinet that declared a conflict of interest in the decision.

MARVIN THE MARTIAN: Well how likely are Wirral Council to do that?

JOHN BRACE: They probably won’t. They always have great difficulty in complying with their legal requirements (of which there are many).There have been many decisions delegated by councillors to officers taken since these new regulations came into effect near the start of August 2014 ranging from taxi licences to other types of decision. Another part of the same regulations dealt with filming of public meetings, which thankfully settles a long running industrial relations dispute with us and them. As far as I can tell no public notice has been published by officers relating to those yet?

MARVIN THE MARTIAN: Why ever not?

JOHN BRACE: Some of the officers to whom the decisions have been delegated to make don’t have the authorisation to publish public notices on the website through the Modgov system. Also this change to legal requirements (which should’ve been implemented from August) would require a change to working practices which requires consultation with the trade unions through the HR department before implementation. Finally, in the vast majority of cases, there are either existing capacity issues with staffing or the decisions are so minor that nobody’s really apart from myself is paying that much attention whether internally or externally while more interesting things are happening and putting the necessary political pressure on to ensure these new regulations are implemented?

MARVIN THE MARTIAN: Like what is more interesting?

JOHN BRACE: Like officers’ plan to persuade the Wirral Schools Forum on Wednesday evening to make £1 million of in year cuts this year in 2014/15 to (SEN Top Ups/Independent School Fees (£600,000), statements (£200,000) and support for SEN (£200,000)).

MARVIN THE MARTIAN: And why are they proposing to cut a further £1 million from the SEN budget this year?

JOHN BRACE: So they can pay for PFI costs in 2015/16.

MARVIN THE MARTIAN: And why have PFI costs risen so much?

JOHN BRACE: Because a political decision was made a long time ago to take ~£2 million out of the PFI budget for 2015/16 and get schools to pay for it instead through budget cuts. Also the calculation in the contract bases yearly increases in how much is paid based on the RPI value in December of one year compared to the previous year then multiplied by ninety percent. That’s my simple explanation, the contract itself refers to the 90% as 0.9 and has a formula as to how the increases are calculated.

MARVIN THE MARTIAN: So if the other special schools (other than Lyndale) think they’re safe they’re not?

JOHN BRACE: Indeed, their budgets were protected this year by dropping by more than 1.5%. Based on the draft regulations circulated by the government (Schools and Early Years Finance (England) Regulations 2014) as part of the current consultation (which closes on October 17th 2014), for special school that protection (assuming the draft regulations aren’t changed) will end in 2015/16. The department for education can be emailed at 2014SchoolFinanceRegulations.Consultation@education.gsi.gov.uk about the policy side of the consultation, or consultation.unit@education.gsi.gov.uk or by telephone on 0370 000 2288 or by mail to Department for Education, Beth O’Brien, Department for Education, Great Smith Street, London SW1P 3BT. Further detail about the consultation is on the DfE website here and you can respond online to this consultation here.

However for mainstream it looks like the minimum funding guarantee of at least 98.5% of last years budget will continue in some form?

MARVIN THE MARTIAN: So because they can (or assume they can) Wirral Council will target more special schools for cuts in the future?

JOHN BRACE: Probably, but officers don’t decide that however they can recommend that. That’s ultimately decided by the Wirral Schools Forum/councillors.

MARVIN THE MARTIAN: So is the money they’re getting for schools each year, the ~£175 million they get from the government under the direct schools grant going down next year?

JOHN BRACE: No it isn’t, but a financial and purely local decision by Wirral Council has been made to withdraw the extra funding from Wirral Council that paid for the PFI affordability gap. This amounts to £600,000 this year and millions next year (2015/16). The PFI affordability gap is the total PFI expenditure minus the fixed grant minus the costs schools pay for the services under the PFI contract which is next year about £2.6 million.

MARVIN THE MARTIAN: So who was the Cabinet Member that originally agreed to this PFI contract in the first place?

JOHN BRACE: Councillor Phil Davies, the current Leader of Wirral Council.

MARVIN THE MARTIAN: Is there any way out of the contract, when does it end and can it be renegotiated?

JOHN BRACE: Yes, 2031 and yes.

MARVIN THE MARTIAN: So will they try to renegotiate to save money or terminate it?

JOHN BRACE: Probably not no, management were asked this at the last Wirral Schools Forum, however management only know what they’re told about the contract, they’re not managing it on a day to day basis. Terminating it would be expensive as there is still 17 years left to run, renegotiating would be the more likely option of the two if the political will is there.

MARVIN THE MARTIAN: So you’re saying the Wirral School Forum members asked Wirral Council officers that hadn’t actually read the contract?

JOHN BRACE: Judging by their answers probably not, managers don’t do things themselves they delegate tasks such as reading contracts and managing contracts to others, maybe not even people that are directly line managed by them but people lower down the food chain.

You can’t expect a senior manager to read such a long contract. Even if they did, it’s hundreds of pages long. It would be very hard to remember all the details unless they brought an electronic searchable version along to the Wirral Schools Forum on say a tablet computer or alternatively circulated an electronic copy to the members of the Wirral Schools Forum. I suppose as a councillor (and member of the Wirral Schools Forum) Cllr Wendy Clements could ask for a copy if she so wished.

MARVIN THE MARTIAN: So what does the PFI contract actually say about renegotiation?

JOHN BRACE: Wirral Council have to ask the provider (Wirral Schools Services Limited) about changes to the contract and be specific. Wirral Schools Services Limited then have a limited time period in which to respond stating (and I summarise here) whether they agree or not to the changes or not. If they agree they are implemented. However if there is disagreement between Wirral Council and the contractor there is a dispute resolution procedure that can be followed.

MARVIN THE MARTIAN: So are there any changes they have to agree to?

JOHN BRACE: Yes certain changes they have to agree to. For example there was a legislation change recently on free school meals for children under a certain age. As this was a legislation change, Wirral Council can ask for such changes to be implemented so that Wirral Council does not breach its legal obligations.

There are other categories of change that the contractor has to agree to too.

MARVIN THE MARTIAN: Indeed, so could Wirral Council’s legal department come up with similar changes which could result in the total cost being lowered?

JOHN BRACE: Wirral Council’s legal department has issues of its own. Also it in order to implement changes quickly it would require agreement of the contractor Wirral Schools Services Limited. Wirral Council would have to seek appropriate authorisation internally from sufficiently senior officers and if it had large budgetary implications in terms of costs or savings then also authorisation from politicians.

MARVIN THE MARTIAN: So it’s possible?

JOHN BRACE: Anything’s possible. However as the contractor is a large organisation with a turnover off the top of my head of about £62 million, although they are considerably smaller in annual yearly revenue budget than Wirral Council, Wirral Council still get scared of organisations with that sort of financial clout, as well as organisational and legal resources at their disposal.

MARVIN THE MARTIAN: Does current senior management at Wirral Council want to renegotiate the contract?

JOHN BRACE: If the Wirral Schools Forum and/or politicians in the administration asked them to they’d have to to look into the option (which would depending on the option and the savings/cost implication would affect budgets through to 2031). After negotiations, generally officers would bring back options to politicians/Wirral Schools Forum for a meeting. However the Schools PFI contract is complex, it is hard for anyone to understand easily.

If neither of those formally happen, senior management already have enough on their plate already and lack the current internal capacity as they are already negotiating a 7 year extension to a contract of a similar size (~£12 million a year) with Biffa Waste Services Limited.

MARVIN THE MARTIAN: But Biffa is in a different strategic directorate to schools!

JOHN BRACE: Indeed but there are capacity issues at the management level and across the organisation at all levels. This is due to annual leave requirements, illness, other factors and the mere practical constraints of there only ever being so many people to keep all the plates spinning up in the air at once.

MARVIN THE MARTIAN: Oh dear. So what is the likely net result to be?

JOHN BRACE: Instead of renegotiating savings on a contract, Wirral Council in the absence of either strong leadership at either the Wirral Schools Forum level or political level will probably accept the status quo and instead make in year cuts of a further £1 million to special educational needs. Officers will probably point out that they have tried to make sure the cuts don’t adversely affect front line services, but they will!

MARVIN THE MARTIAN: How on Mars do you make £2 million of in year cuts without it affecting frontline services?

JOHN BRACE: Indeed… here is a link to the papers for tomorrow’s Wirral Schools Forum meeting which is a public meeting starting at 6.00pm in the Council Chamber in Wallasey Town Hall.

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The incredible £20,000 report into Dave Green/Colas that Wirral Council wouldn’t release on “data protection” grounds

The incredible £20,000 report into Dave Green/Colas that Wirral Council wouldn’t release on “data protection” grounds

The incredible £20,000 report into Dave Green/Colas that Wirral Council wouldn’t release on “data protection” grounds

                          

Roadworks on the Wirral from 2011
The Colas contract included maintenance of Wirral’s roads

Three and a half months ago I submitted a FOI request for a dozen documents held by Wirral Council that were given to Richard Penn before writing his thirty-nine page report into Dave Green’s involvement in the Colas contract. Over three months later they have replied, providing a copy of the Council’s conflict of interest policy and conflict of interest procedure.

What’s interesting is what’s in the list of ten documents requested that they refused to supply on “data protection” grounds. One of these was a report that cost Wirral Council £20,000 from their then auditor the Audit Commission. It was a twenty-six page Public Interest Disclosure Act report into what happened during the tendering of the multi-million pound Colas contract. Despite Wirral Council’s reluctance to release it in response to my FOI request it was in fact published on their website as it was considered during an Audit and Risk Management Committee meeting that met in September 2010.

Here are some quotes from that report by the Audit Commission that obviously Wirral Council didn’t want to release in response to my Freedom of Information Act request:

“However, the issues raised were genuine concerns and our review did highlight some weaknesses including a lack of clarity about separation of duties, inadequate records and documentation and the need to clarify corporate systems for raising and recording potential conflicts of interest. There were also examples of a lack of proper consideration of or disregard of procedures, for example meeting with potential tenderers during the period between the post tender qualifying stage and tender
submission.” (page 7)

“These weaknesses potentially left the Council and individuals open to external challenge. If there had been external challenge to the contract by an aggrieved bidder, the remedy could have led to substantial damages being paid and loss of reputation by the Council. Going forward, a new EU Remedies Directive applicable to new procurements advertised after 20 December 2009 means that aggrieved bidders now have tougher remedies against public authorities that break procurement rules. The High Court will be able to set aside signed contracts resulting in delays to services, as well as significant and costly litigation and further procurement costs (see Appendix 3 for further detail).” (page 7)

“As noted at paragraph 1, the PIDA concerns were raised with us following an internal PIDA investigation. The Council needs to continually consider the adequacy of its Whistleblowing procedures and how well they are complied with to ensure that individuals have confidence that issues will be fully investigated and lessons learnt.” (page 7)

“Concerns were raised with us that a meeting was held by the Director of Technical Services and another senior officer with one of the tenderers between the post qualifying stage and tender submission.” (page 11)

“However, the meeting was not minuted and so there is no formal record of what was actually discussed. The Director of Technical Services and the other senior officer indicated that the reason for the meeting was to clarify whether tenderers could bid for both the main tender and for the sub-contract work for the in-house tender. Holding this meeting and failing to record it was clearly inappropriate and contrary to procedure and put the Council at risk of non-compliance with procurement regulations and the tenderer at risk of disqualification.” (page 11)

“The invitation to tender clearly specifies the procedure for enquiries from potential tenderers in order for the process to be open and fair for all concerned and to ensure there is no canvassing which would result in disqualification from the tendering exercise” (page 11)

“Concerns were raised with us that the Director of Technical Services had failed to declare a potential conflict of interest regarding a personal friendship with an individual in one of the firms bidding for the contract.” (page 12)

“Our review confirmed that a conflict of interest form was submitted by the Director but this was done retrospectively. We found no evidence of any information being shared as part of this association.” (page 12)

“The Director of Technical Services completed a conflict of interest declaration on 11 November 2008 and submitted it to the Chief Executive to be considered at his next annual Key Issues Exchange (KIE) meeting which was held in November 2008. However, it was following the award of the contract (16 October 2008) and should have been submitted and discussed with the line manager at the start of the tendering process. In addition, as the tenderer was an existing contractor, there should have been existing annual declarations on file. This retrospective declaration has clearly allowed the relationship between the Director and the individual to be viewed with suspicion.” (page 12)

“The Director of Technical Services indicated that the individual in the firm is an acquaintance who is a close friend of his brother who had previously worked for the firm. Although the Director was aware that the individual worked in the firm he judged that there was no conflict to declare. Once he became aware that the individual would be involved in the contract going forward the Director submitted his conflict of interest form in line with his judgement and his interpretation of the Council’s procedures.” (page 12)

“However, Council procedures clearly state that in order to manage conflicts of interest (including any perception of a conflict), employees should complete the form even if there is nothing to declare and return it to their line manager at the KIE and any amendments should be made immediately. During our review we found no evidence of any annual declarations of interest for the Director prior to the one submitted on 11 November 2008 apart from those covering the period when his brother worked for the firm. However, the absence of annual declarations was not unusual in the Council at that time and was raised as an issue in Internal Audit reports during 2008 and a memo dated March 2009.” (page 12)

“The key issue is whether the Director or his line manager should have made the judgement about whether and when a potential conflict should be declared. Our view is that it was the responsibility of the Director to make the line manager aware of his ‘acquaintance’ when the firm first contracted with the Council and this should have been reviewed when the tendering exercise started and the firm received an invitation to tender. The judgement about whether it was a conflict (or a possible perceived conflict) then rests with the line manager and arrangements could have been put in place to ensure that it was appropriately managed and any ‘perceptions’ of conflicts rebuttable.” (page 13)

“As noted above, the absence of annual and updated declarations as well as poor evidencing of review and consideration by line managers was not unusual within the Council. We also found during this review that there were weaknesses in the procedures around the employment of consultants, for example ensuring sign up to confidentiality clauses and completion of conflict of interest forms and supporting consideration (one of the consultants had previously worked for the winning firm).” (page 13)

“The Council needs to continually consider the adequacy of its Whistleblowing procedures and how well they were complied with to ensure that individuals with genuine concerns have confidence that issues will be fully investigated and lessons learnt.” (page 15)

“During the period when the contract was tendered and let any external challenge by aggrieved bidders could have lead to damages being paid.” (page 23)

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