Employment Tribunal (Alison Mountney v Wirral Council) Day 10 of 10: Judgement
Employment Tribunal (Alison Mountney v Wirral Council) Day 10 of 10: Judgement
Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for Employment Tribunal case 2400718/16)
This is a report of a very small part of an Employment Tribunal hearing I attended (the judgement). By this point the matter had already been heard over 9 days and this was day 10 of 10. Brief details are below.
Venue: Tribunal Room 2, Third Floor, Liverpool Civil and Family Court Hearing Centre, 35 Vernon Street, Liverpool, Merseyside, L2 2BX
Why is Wirral Council being charged £49,047.35 a month for VAT on school meals by Edsential Community Interest Company?
Why is Wirral Council being charged £49,047.35 a month for VAT on school meals by Edsential Community Interest Company?
David Armstrong (right) Assistant Chief Executive (a company director of Edsential Community Interest Company) at a recent meeting of the Wirral West Constituency Committee (30th June 2016)
Updated 15#47;8#47;16 following responses by Edsential and Wirral Council
Below is an invoice from Edsential Community Interest Company to Wirral Council for school meals in December 2015 and operation charges from December 2015 to March 2016.
Edsential invoice to Wirral Borough Council 2nd January 2016 Wirral Schools meals and operation charges £404084.10
I’m puzzled as to why the school meals element for £245,236.75 attracts VAT at 20%, when Her Majesty’s Revenue and Custom’s guidance note on VAT on school meals would seem to (at least by my reading) state that school meals (apart from those to staff and visitors) are exempt from VAT.
Therefore I’m puzzled why this element of the bill attracts VAT of £49,047.35, when surely the amount should be different than this (if it was just for staff and visitor meals)?
However Wirral Council’s paid the VAT on the school meals charge from Edsential. This is per a month (and some of December no school meals will be served because of the Christmas holidays), so over the year it means the VAT could be a few hundred thousand?
This is well below the level of materiality or triviality which is why it probably doesn’t get picked up routinely, after all Edsential is a relatively new arrangement.
But when the taxpayer is funding free school meals, what’s the correct tax situation?
Both Wirral Council and Edsential have been in touch since this article was written and their responses are below.
Wirral Council reclaim the VAT back from HMRC and state that no VAT is charged to pupils for school meals, Edsential claim the VAT they charge Wirral Council is correct.
Updated: 12/8/16 some replies on Twitter state that if Wirral Council was providing these services to schools then the catering services would be exempt from VAT, however the issue of whether schools are exempt from paying VAT on catering services are in related to a limited company owned by two local councils rather than the Wirral Council itself.
Updated 15/8/16:
Ian McGrady (Managing Director) of Edsential has responded with, “As a matter of policy we do not comment on commercially confidential relationships with our customers. However, I can confirm that our management of VAT complies with all HMRC guidance appropriate to our status as a Community Interest Company.”
Peter Molyneux of Wirral Council confirmed that when Metro Catering (an arm of Wirral Council) were providing a school meals service then VAT was not chargeable. Now Wirral Council contract with Edsential, Edsential charge Wirral Council VAT which Wirral Council then claim back from HMRC.
So Wirral Council do pay the VAT, but then claim it back on their monthly VAT return.
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What were the 6 A4 pages of partially redacted minutes of a Headteachers’/Teachers’ Joint Consultative Committee meeting and the name of a LGA Associate Tutor that Wirral Council disclosed voluntarily in response to a First Tier-Tribunal (General Regulatory chamber) hearing (case number EA/2016/0033) about a Freedom of Information request first made in March 2013?
What were the 6 A4 pages of partially redacted minutes of a Headteachers’/Teachers’ Joint Consultative Committee meeting and the name of a LGA Associate Tutor that Wirral Council disclosed voluntarily in response to a First Tier-Tribunal (General Regulatory chamber) hearing (case number EA/2016/0033) about a Freedom of Information request first made in March 2013?
Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for First-Tier Tribunal case EA/2016/0033)
I will start by declaring an interest as I was the Appellant in case EA/2016/0033. I am also married to my McKenzie Friend in this matter Mrs Leonora Brace.
Court | Room: Tribunal Room 5, 3rd Floor, Liverpool Civil and Family Court Hearing Centre, 35 Vernon Street, Liverpool, Merseyside, L2 2BX
Oral Hearing
On: 16th June 2016
Time: 10.15am
First-tier Tribunal (General Regulatory Chamber)
Case Ref: EA/2016/0033
Parties Mr | John Brace (Appellant) ICO (First Respondent) Wirral Metropolitan Borough Council (Second Respondent)
Before: Mr. David Farrer QC Tribunal Judge Mr. Michael Hake Tribunal Member Dr Malcolm Clarke Tribunal Member
I think it is better to provide a chronology at this stage as to how this part of the request went (references are to this part of the request).
29th March 2013 FOI request made. 29th April 2013 Internal review requested due to lack of reply. 30th April 2013 Internal review sent by Wirral Council. Request refused on cost grounds (section 12), but offer made to send minutes of Safeguarding Reference Group. 30th April 2013 Clarification over meaning of request sent/internal review as response on 30th April 2013 was first response. 30th July 2013 Internal review changes reason from cost grounds (section 12) to vexatious or repeated request (section 14). 14th August 2013 Decision appealed to Information Commissioner’s Office. 19th June 2014 Wirral Council amends reason for refusal from vexatious or repeated request (section 14) to cost grounds (section 12). 8th September 2014 ICO issue decision notice FS50509081. Decision notice overturns cost grounds (section 12) reason, finds Wirral Council failed to provide advice and assistance (section 16) and hasn’t responded to request within 20 days (section 10(1)). Wirral Council given 35 days to provide information or different reason. 4th November 2014 FOI request for minutes of Safeguarding Reference Group refused on section 40 (personal data) grounds. 12th November 2014 Internal review of 4th November 2014 decision requested. 30th April 2015 After ICO intervention Wirral Council replies. Wirral Council refuses internal review on section 14 (vexatious or repeated request) grounds. Unknown date Decision appealed to ICO. 29th July 2015 ICO issued second decision notice (FS50569254). Decision notice overturns section 14 (vexatious or repeated request) reason for all of request except adoption/fostering panel part. Finds Wirral Council have breached section 10 (again). 3rd September 2015 Wirral Council respond to decision notice FS50569254. Minutes of Safeguarding Reference Group now refused on section 36 (prejudice to effective conduct of public affairs) and section 40 (personal data). 7th September 2015 Decision appealed to Information Commissioner’s Office (ICO). 11th January 2016 Wirral Council supply minutes of Safeguarding Reference Group held on 19th April 2011.
Wouldn’t it have just been easier (as they made the offer to send the minutes of the Safeguarding Reference Group in April 2013) to supply these minutes then? How much officer time was wasted in refusing six pages of minutes on a committee that 7 councillors sat on and at least 5 senior managers (although one wasn’t present for the meeting).
Three of the 7 councillors present are no longer councillors and at least three of the senior managers have either gone into early retirement or left Wirral Council.
There are 4 parts in the six pages of minutes where names have been blacked out. Did it really take 2 years, 9 months and nearly a fortnight to do this?
What was the point in spending over 2 years and 9 months refusing this request? The minutes they’ve supplied refer to a further meeting on the 20th July 2011 so although this is welcome, they may not be the right ones! I requested the minutes of the meeting immediately before my request on the 29th March 2013. Is the implication that the incoming minority Labour administration in 2011 scrapped the Safeguarding Reference Group (which was re-established on the 15th December 2014)? I’m not sure!
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UPDATED: Cabinet to make decision next month on Birkenhead Market lease
UPDATED: Cabinet to decide on Birkenhead Market lease next month
07/10/2015 19:01 Although at the time this was written a decision was expected by Wirral Council’s Cabinet on Birkenhead Market in October 2015, Wirral Council have since this story was written put back a decision on this matter to November 2015. This story was originally published on 8th September 2015, but has been updated on the 7th October.
Last Friday, Wirral Council added a new item to their Forward Plan (the Forward Plan is a list of upcoming topics that decisions will be made on) called Birkenhead Market – Lease. It’s down for a decision to be made by Wirral Council’s Cabinet in OctoberNovember 2015.
Further details can be found on Wirral Council’s website, but it’s a key decision because of the “significant people impact”.
It will be at least 28 days (which doesn’t include the 4th September 2015 or the date of the Cabinet meeting) so the earliest Cabinet meeting this could be decided at is the one on the 8th October 2015 this could be decided is November 2015.
First the history of the matter. Cabinet in a behind closed doors meeting on 5th December 2002 after a bidding process awarded the bid for market operator for Birkenhead Market to Mr. Lawrence Embra. However the minute text states very little detail.
It’s been a while since I read the Birkenhead Market lease and I’ve no idea which aspect of the lease the upcoming Cabinet decision relates to.UPDATED: 12/9/15 Wirral Council confirm that this is about the rents.
However this is where is starts to get complicated.
There’s a sublease between Birkenhead Market Limited and Birkenhead Market Services Limited for part of the ground floor of the Birkenhead Market Hall.
There’s an underlease between Birkenhead Market Limited and Wirral Borough Council.
Finally (well almost finally) there’s a lease between Birkenhead Market Limited and Wirral Borough Council for the premises at Birkenhead Market, Birkenhead. It’s part of this last document (without schedules and one of the plans) that are below.
The schedules*(see below) detail the history for each market stall followed by plans. The first plan (unfortunately Crown copyright) shows the Birkenhead Market Hall and the surrounding road system (which is similar to this plan on Wirral Council’s website. It shows what the half-width of the Birkenhead Market Service Road is, there are then internal plans of the market and the layout of the toilets.
*The schedules are a table with the following column headings: date, nature of document (such as tenancy agreement, copy assignment, licence to assign/change of user and memorandum of rent review), parties and document numbers. These are for the following market stalls A1, A2, A3, A4, A5, A6, A7, A8, B41 and B56, B42, B43 and B54, B45 and B46, B47/50, B48 and B49, B51, B52, B55, C97/112, C98 and C99, C100, C101, C102 and C107, C103 & C106, C104, C105, C108, C109, C110, C111, CP1/2, CP3, CP4, CP5, CP6, CP7, CP8, CP9, CP10, CP11, CP12, CP13, CP14/15, CP16, CP17, CP18, CP20, CP21, CP22 & CP23 & CP24, CP26, CP27, CP28, CP29, D9, D10/11, D12, D13, D14, D15, D16, D17, D18/19, D20, D21/D22, D23/24, D25, D26/27, D28, D29/30, D31, D32, D33, D34/35, D36, D37/38, D37 & D38, D39, D40, E57/58, E59, E60, E61, E62, E63, E64/65, E66, E67, E68, E69, E70, E71, E72, E73, E74, E75, E76, E77, E78, E79, E80, E81, E83, E84, E85, E86, E87/88, E89, E90, E91, E92, E93, E94, E95, E96, F113, F114 and F115 and F139, F116, F117, F118, F120, F121, F122, F123, F130, F124, F125 and F128, F126, F127, F129, F133, F134 and F135, F136, F137 and F138, F140, F141, F142, F143, F144, F145, F146, F148, F150 and F151, F152 and F153, F154, F155, F156, F157, F158 and F159, F162 and 163, F165, F167, F168, G20, G23, G24, G25, G26, G27, G28 and G29, P4, P5, P6, P7 and P8, P9, P10, P11, P12, P13, P14, P15, P16, P17 and P18, P19, P36, P37 and P38, P39, P40 and P41, P42 and P43, P44 and P45, P46, G30, G31, G32, G33, G34, G35, P1 and P2, P3, P47, P48 and P48 and V2. Now you’ve seen how long this list is you’ll understand why I didn’t scan these pages in too (but it goes some way to explain the significant people impact).
I realise the plans can be hard to read so each plan should be linked to a higher resolution version. The thumbnails of the lease pages seem readable so I have left them as they are. Hopefully more will be known nearer the time as to what specifically this decision is about.
Birkenhead Market lease cover page Birkenhead Market Limited Wirral Borough Council page 1 of 2 thumbnail
