Why is Liverpool City Council not complying with ICO decision notice FS50591795?

Why is Liverpool City Council not complying with ICO decision notice FS50591795?

                                                     

ICO Information Commissioner's Office logo
ICO Information Commissioner’s Office logo

A long time ago I made a FOI request to Liverpool City Council that resulted in ICO decision notice FS50591795 dated the 1st February 2016.

As it states in paragraphs 3 and 4 of that decision notice:

“3. The Commissioner requires the council to take the following steps to ensure compliance with the legislation.

  • Issue a fresh response under the terms of the FOIA to the part of the complainant’s request that seeks copies of relevant invoices.

4. The council must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.”

However 35 calendar days after the decision notice was yesterday and no “fresh response” has been issued.

You can see from yourself on the whatdotheyknow.com website that the last response received from Liverpool City Council was in June 2015.

So below is my response to Liverpool City Council’s Monitoring Officer about the lack of compliance with this decision notice.


To: "McLoughlin, Janette" <Jeanette.McLoughlin@liverpool.gov.uk>

Dear Janette McLoughlin,

I write to you in your capacity as Monitoring Officer for Liverpool City Council.

A copy of ICO decision notice FS50591795 issued on the 1st February 2016 is attached to this email for reference. Please note that this is an enforcement notice, see s.52 of the Freedom of Information Act 2000.

The enforcement notice states in paragraphs 3 and 4,

“3. The Commissioner requires the council to take the following steps to ensure compliance with the legislation.

Issue a fresh response under the terms of the FOIA to the part of the complainant’s request that seeks copies of relevant invoices.

4. The council must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.”

No fresh response has been issued within 35 calendar days of the decision notice.

Liverpool City Council has failed to comply with the decision notice, which is a breach of s.54(1)(a) of the Freedom of Information Act 2000.

Please could this matter be rectified as soon as possible.

As you are Liverpool City Council’s Monitoring Officer, I am also requesting that you write a report to the executive of Liverpool City Council (see s.5A of the Local Government and Housing Act 1989) as Liverpool City Council’s lack of response would appear to constitute a breach of the Freedom of Information Act 2000.

A report would be useful so that lessons were learnt and there isn’t a repeat of this in the future.

I will also be contacting the regulator (the Information Commissioner’s Office) today about this matter.

Yours sincerely,

John Brace

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What was Liverpool City Council’s incredible 6 page response to the FOI consultation?

What was Liverpool City Council’s incredible 6 page response to the FOI consultation?

                                                                  

ICO Information Commissioner's Office logo
ICO Information Commissioner’s Office logo

You can tell a lot about the culture at a public body by its response and reaction to issues such as FOI and filming of public meetings.

I had better declare an interest as a FOI request I made to Liverpool City Council is currently being considered by ICO for a decision notice.

Considering there were over 30,000 responses to the recent consultation on changes to FOI legislation it’s something that attracts a lot of strong feeling.

I’m going to start first with Liverpool City Council’s response to the consultation. Those who know Liverpool City Council may say that their response sums up their attitude. From the tone of their response they don’t like openness and transparency and recommend that the goalposts are moved to prevent having to respond to so many FOI requests (whilst displaying a lack of awareness as to why they receive so many FOI requests in the first place). I think that responses like this are often like a window on an organisation’s soul.

It gives some telling insights on the internal review process of FOI requests at Liverpool City Council with comment such as “that an Internal Review is unlikely to reach a different conclusion”, therefore they propose abolishing internal reviews.

They also want advance notice of decision notices so that they can for want of a better word nobble ICO to change what they don’t like as in LCC’s world decision notices are described as “inappropriate”.



Liverpool City Council

Rt. Hon. Lord Burns
Chair – Commission on Freedom of Information Cabinet Office
9th Floor
102 Petty France London
SW1H 9AJ

Evidence Submission on review of Freedom of Information Legislation

I write further to my letter of 12 October and with regard to the Call for Evidence document issued by the Commission on Freedom of Information on 9 October, enclosing for the attention of the Commission the formal evidence submission of Liverpool City Council.

I would appreciate it if you would acknowledge receipt of this submission and would again take the opportunity to affirm our willingness to continue to engage constructively with the Commission during the course of its review.

I look forward to hearing from you in due course. Yours
sincerely

Ged Fitzgerald
Chief Executive

Response

These matters all have a starting point and undergo a number of iterations before coming forward as formal options. It is essential that this process should not be undermined by requests being made for copies of any emails or communications which formed part of the iterative process of decision making. Ultimately the governance framework ensures any decisions taken are informed and legal. This is a cornerstone of any effective public authority – from Central Government to local authorities – and it is essential that this ability to develop policy, proposals and explore options is maintained otherwise it would impair the quality and ability of public authorities to make informed decisions.

The application of this Exemption requires a person qualified under the Act to give their reasonable opinion, and guidance has been issued by the ICO as to the acceptable format of this. It is clear from the consultation document as well as practical experience that there is a need for such Exemption otherwise the quality of both record-keeping and decision-making by public authorities would be impaired.

Current guidance issued by the ICO (“the evidence required by the ICO would be to assess the quality of the Qualified Persons reasoning process and assist in their determination as to whether a substantive opinion could be considered reasonable…”) would appear to indicate that once the Qualified Person has reached and recorded their reasonable opinion then the ICO may only require the production of such a record but may not compel the disclosure of the information to which the Reasonable Opinion relates.

The key issue is that the Qualified Person’s opinion and record of reasoning which includes the public interest test is recorded. The ICO have produced a template for this purpose. The Information Commissioners Guidance also indicates that the potential prejudice claimed arising from any such disclosures must be at least or exceed a 50% chance of occurring.

How long after should that remain sensitive?
An additional key aspect of the decision-making process of public authorities is the duration of how long information which falls under the Exemption may be withheld from disclosure on the basis of the opinion of the Qualified Person. Information relating to ‘internal deliberations’ should remain capable of being withheld from disclosure for as long as the public authority considers necessary. Whether the information held continued to be subject to non-disclosure would of necessity be a matter for the relevant public authority to determine. It would be inappropriate to set any form of definitive time limit after which information could be deemed to no longer be sensitive if published. The sensitivity of any specific piece of information directly relates to the subject of the information itself as opposed to the date when this was created. There should be no limitation as to the period which a Qualified Person may determine that such information should not be disclosed if the subject of a formal request.

The City Council would also consider that opinions issued by Qualified Persons should not be subject to overturn if reached on a reasonable basis and in a manner consistent with ICO guidance and using their standard template. An alternative and more appropriate mechanism would be for any such opinions to be published on the website of the respective public authority and referenced accordingly within the publication scheme of that public authority. This would satisfy the accessibility and transparency requirements for such declarations and for the purposes of Liverpool City Council it is the Monitoring Officer.

An anomaly which the City Council would bring to the attention of the Commission is that of how the Environmental Information Regulations 2004 (EIR) allow an exception (as opposed to the term ‘exemption as used under FOIA) for internal communications under Regulation 12(4) (d) and yet no parallel exemption is extant under FOIA.

Recommendations from Liverpool City Council –

(i) Qualified Person Opinion & Publication – that the Section 36 Exemption be revised to state that the reasonable opinion of the Qualified Person, once drafted and recorded on the relevant ICO template and published to the website of the public authority and referenced within the Publication Scheme, that this may not then be the subject of further review by the ICO.
 

Questions 2 – this question relates purely to matters within the legislation which are applicable only to Central Government and as such no response is proposed to be made.

Questions 3 & 4 see response to question 6 below.

Question 5 – What is the appropriate enforcement and appeal system for Freedom of Information Requests? What is the appropriate enforcement and appeal system for Freedom of Information Requests?

Appeals & Internal Review
Current legislation includes provision whereby public authorities must provide an internal review process whereby requestors may ask the Public Authority to review the original decision of the Public Authority on their specific request.

The burden placed on public authorities in preparing responses to initial requests is further exacerbated by the requirement to undertake an Internal Review to assess the validity of its response, when in the first instance such responses are issued following careful consideration of information held in the context of FOIA legislation. In terms of the figures set out in this response below, in 2014 of 2,139 requests a total of 49 requestors sought an Internal Review. Of these, only 5 appeals were the subject of Decision Notices from the ICO with only 1 of which requiring any form of action from the City Council – approximately 0.00047% of all requests processed by the City Council.

It is our position that our approach to an FOI request is robust and thorough from the outset, and that the legislation is applied by trained experienced staff so that an Internal Review is unlikely to reach a different conclusion as evidenced by these statistics.

Essentially public authorities are being asked to repeat an assessment when undertaking an Internal Review and to undertake work twice when conducting reviews, which is inefficient and places an excessive burden on local authorities.

ICO Review
We would draw attention to the process which the ICO then undertakes when seeking information from public authorities in such instances when informing their own decision-making. Frequently the level of information sought by the ICO goes beyond that of verifying the information held or application of the exemption concerned and indeed the subject matter of the original request. This process can be both resource intensive and give additional uncertainty in those circumstances where the ICO seeks information or reasoning beyond that which could reasonably be expected on a specific case. We would seek greater clarity as to the remit of the ICO in such circumstances and of the extent to which they may undertake a review.

Decision Notices
Additionally, in concluding reviews, the ICO will then issue a Notice (Decision or Enforcement Notice) setting out their decision on the request concerned. We would suggest that this process be reviewed and aligned more closely to that used by the Local Government Ombudsman whereby any Notices proposed to be issued should firstly be sent to the public authority concerned for response. This would provide a fair and reasonable opportunity for public authorities and the ICO to address any clear factual inaccuracies, assist in maximising the value of any recommendations contained within the final Notice issued and possibly prevent a costly First Tier Tribunal being convened. The timescale for responses by the Public Authority to any Decision Notice to be 10 working days. The inclusion of unsubstantiated and factually inaccurate statements within ICO Notices, issued without opportunity to the public authority of correction or rebuttal, is inappropriate and requires addressing.

Applications to First Tier Tribunal (Information Rights)
The final opportunity for requestors – if unsatisfied with the outcome of a review undertaken by the ICO – is to submit an Appeal to the First Tier Tribunal. There is no threshold to be met before such applications are made and, in seeking to respond, public authorities are required to expend significant resources in responding. Only on the most fundamental principles of information law should this facility be available or otherwise a cost mechanism for such applications should be introduced in the same manner adopted for applications for Judicial Review.

Recommendations from Liverpool City Council –

(ii) Internal Review – that this mechanism be withdrawn on the basis that this offers no practical benefit for requestors and merely requires the duplication of effort by public authorities.

(iii) ICO drafting of Decision Notices – a requirement be introduced whereby the ICO in drafting a Decision Notice and prior to publication, be required to formally consult the subject public authority and allowing not less than ten working days for issues to be raised by the public authority. Such issues if not accepted by the ICO must be recorded as having been raised by the public authority.

(iv) Applications to First Tier Tribunal (Information Rights) – a threshold or application fee be introduced for applications to the First Tier Tribunal, in a similar manner to that used for applications for Judicial Review.

Question 6 – Burden imposed under the Act and whether justified by the public interest in the public’s right to know

Public authorities are subject to detailed requirements set out in the Local Government Acts to date requiring the publication of information and prescribing how this is to be made available to the public. In addition, the introduction of the Local Government Transparency Code as statutory guidance introduced additional publication requirements on public authorities regarding openness and transparency in local government, which represents additional obligations beyond that already seen. Combined these elements demonstrate the breadth of requirements already inherent on public authorities to make information publicly available.

The Freedom of Information Act (FOIA) (and parallel Environmental Information Regulations 2004) place additional substantial burdens on public authorities. In terms of the resources public authorities are required to commit to dealing with Freedom of Information requests, there are a number of key points to be made.

Burden on Public Authorities
Under Section 16 FOIA and Section 45 Code of Practice, all public authorities are already under an obligation to give advice and assistance to requestors both in terms of framing requests as well as giving advice to bring such requests within the cost ceiling as laid down within the legislation. The current ceiling set out in the legislation is 18 hours, which is high in terms of resource and cost implications.

Firstly, by way of example of the experience of Liverpool City Council, the number of requests received in 2010 (1,217 requests) to the number of requests received in 2014 (2,139) shows an increase of 922 or in percentages of approximately 76%, and an increase in costs of approximately £150K per annum. This increase can be set against a context whereby the City Council has seen the funding it receives from Central Government reduced by 58% during the same period, placing substantial pressures on the viability of the delivery of essential services for its residents.

In real terms and using the figure for the average costs incurred in responding to an FOI request as set out in the Consultation Document issued by the Independent Commission, of £164 per request, the cost of responding to FOI requests based solely on this is £350K per annum to Liverpool City Council alone.

This does not take into account more complex, technical and detailed requests which have to be dealt with and which cost substantially more. The Council’s response rate within 20 working days was 88% in 2014.

The City Council would draw to the Commission’s attention the fact that that the average cost per request it has included within its consultation document is based on calculations undertaken in 2008.

It is highly probable that a similar calculation conducted today would reach a substantially higher ‘cost per request’ figure.

Table 1. Number of request received by Liverpool City Council in 2010 and 2014 and associated costs

























2010

2014


Month received



Total


Month received


Total


Jan-1092Jan-14226
Feb-1062Feb-14215
Mar-1082Mar-14177
Apr-1097Apr-14189
May-10104May-14161
Jun-10109Jun-14151
Jul-10116Jul-14143
Aug-10106Aug-14187
Sep-10126Sep-14171
Oct-10105Oct-14180
Nov-10140Nov-14193
Dec-1078Dec-14146
12172139

£164 per request

£199,588

£164 per request

£350,796

Vexatious Requests
The City Council welcomes the revised ICO guidance. However there needs to be additional clear guidance within that around the real public interest rather than the private interests of unelected individuals or concerted campaigns which are a drain on public resources. This type of requestor continues to rise in terms of complexity and their impact on available resources.

Based on the experience of Liverpool City Council and using the average cost idicated above, a small number of “frequent requesters” are costing a disproportionate amount of time and resources responding to their requests, of up to £7,000 per individual. This needs to be reflected and addressed within a substantive manner within any Guidance issued by the ICO.

There are also resource implications even associated with dealing with frivolous requests such as “what is the total number of red pens bought by the Council in the past year”. Even though this is classed as vexatious a formal response to that effect is still required to be issued, effectively occupying valuable resources.

Charging
A further burden associated with FOIA is that of the limited charging mechanisms available under the legislation, specifically, under FOIA public authorities may only charge where the time to deal with the request exceeds 18 hours in total.

The current 18 hours threshold (Section 12) is itself a significant demand on Council resources in that a request can take up to anything just below that timescale and no charge can be made. This in effect is up to and two and half days work . This threshold should be reviewed in the light of some of the research undertaken to date i.e. the average time taken to respond to an FOI request by public authorities of 6 hours and 10 minutes with a lower threshold being established.

In terms of the current charging regime associated with Freedom of Information legislation, again the experience of Liverpool City Council in responding to requests is that the art of redacting specific documents can be very time consuming and should be included within the costs permitted when determining whether complying with a request may exceed 18 hours.

In terms of charging the approach set out in the Environmental Impact Regulations 2004 (EIR) assumes information will be available to inspect ‘for free’ but if information is asked to be supplied in a different format a ‘reasonable’ charge may be made for that supply. Specifically, this charge may extend to the time spent by Officers in responding to the EIR request and supplying the information. This differs to the approach adopted in FOIA and should be made consistent.

The City Council would also draw attention to the difficulties caused by the two disclosure regimes operable in the form of the Freedom of Information Act (FOI) and the Environmental Information Regulations 2004 (EIR). There is considerable overlap between requests which may be received under FOI but which, by virtue of the wide definition under EIR should be considered under that regime. The City Council would seek to encourage greater consistency between both regimes, through either a single consolidating Act or through amendments to both existing regimes to provide for a single common charging mechanism and consistency of the requirements for exemptions and exceptions.

Technical Issues

An additional technical issue which we would seek to highlight is that of an Exemption (Section 21 absolute, class based) which is applied in those instances where information is either already in the public domain or accessible by alternative means. The legislation still requires this to be issued with a supporting Section 17 Refusal Notice. The City Council considers that the application of this Exemption should not require the issue of a Refusal Notice as no information is being withheld given it is either already in the public domain or accessible by other means to which the requestor is then directed. The use of a Refusal Notice in such instances can give rise to an Internal Review which of its nature would only generate additional unnecessary burdens for public authorities.

Recommendations from Liverpool City Council –

(v) 18 Hour Rule – that a review of the 18 hour limit beyond which charging or refusal is permitted be undertaken and consideration given to reducing this threshold to either 6 or 7 hours.

(vi) Charging/Reasonable recovery of costs – public authorities be given greater opportunity to levy charges for compliance with requests to ensure the recovery of reasonable costs associated with fulfilling requests which would include the time taken to redact any documents. To align the charging policies for EIR and FOI.

(vii) Vexatious Requests –that Guidance issued by the ICO in relation to dealing with Vexatious requests be further reviewed and strengthened in respect of frequent and persistent requesters

(viii) FOIA and EIR Alignment of Regimes – that a concurrent review be undertaken of the FOIA and EIR to ensure greater alignment of both pieces of legislation or one consolidating Act.

(ix) Refusal Notices – the requirements for issue of Refusal Notices be reviewed to remove requirements to issue these in such instances where a Section 21 (information in public domain or reasonably accessible by other means) Exemption is applicable.

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EXCLUSIVE: 8 page briefing note leads to Wirral’s councillors agreeing to further FOI discussions behind closed doors

EXCLUSIVE: 8 page briefing note leads to Wirral’s councillors agreeing to further FOI discussions behind closed doors

                                                          

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Councillors discuss Wirral Council’s response to Freedom of Information Act requests at a meeting of the Transformation and Resources Policy and Performance Committee on the 3rd December 2015

Cllr Phil Gilchrist addresses the Transformation and Resources Committee about freedom of information requests 3rd December 2015
Cllr Phil Gilchrist addresses the Transformation and Resources Committee about freedom of information requests 3rd December 2015

Yesterday saw councillors discuss freedom of information requests and how Wirral Council handles them in response to this Lib Dem motion. As a number of the ICO decision notices are in response to my requests, I will declare an interest before writing any further.

Interestingly, the day before the Transformation and Resources Policy and Performance Committee met, Surjit Tour had written an eight page "briefing note" which was referred to by councillors during the debate.

The Conservative amendment to the motion was withdrawn and the Labour amendment to have a task and finish group of councillors meeting to discuss FOI behind closed doors (again) on the subject (in the spirit of openness and transparency of course!) was agreed.

You can watch the video of councillors discussing this item above.

However what will probably make more interesting reading is the briefing note itself which I reproduce below (it’s not published with the papers for the committee or indeed anywhere else). It’s a bit hard to summarise eight pages, but it’s basically eight pages of justification by officers that they’re doing their best they can on FOI (with the promise of improvements) and that it isn’t as bad as the bleak picture as painted by Lib Dem politicians. If the thumbnails are hard to read, they should each link to a more high resolution version of each page.

Surjit Tour briefing note on FOI to Transformation and Resources Policy and Performance Committee page 1 of 8 thumbnail
Surjit Tour briefing note on FOI to Transformation and Resources Policy and Performance Committee page 1 of 8 thumbnail

Continue reading “EXCLUSIVE: 8 page briefing note leads to Wirral’s councillors agreeing to further FOI discussions behind closed doors”

What’s happening in the week ahead in local government (30/11/15 to 4/12/15)? (Wirral Council, Merseytravel, Merseyside Police and Crime Panel, House of Commons and House of Lords)

What’s happening in the week ahead in local government (30/11/15 to 4/12/15)? (Wirral Council, Merseytravel, Merseyside Police and Crime Panel, House of Commons and House of Lords)

                                                                   

Cllr Chris Blakeley addressing Wirral Council Regeneration and Environment committee about a new fire station in Saughall Massie September 2015
Cllr Chris Blakeley addressing Wirral Council Regeneration and Environment committee about a new fire station in Saughall Massie September 2015. A decision in September 2015 was deferred by councillors but will be decided this week.

I thought it would be a good idea to restart a regular feature I used to do on this blog which was looking to the week ahead with a brief summary of what’s happening.

Wirral Council’s Families and Wellbeing Committee meets tomorrow (Tuesday 1st December) at 6.00pm at Wallasey Town Hall. There are no motions on the agenda but councillors will discuss the all age disability strategy and the day services local authority company called Wirral Evolutions.

Wednesday evening sees the high-profile issue of a fire station at Saughall Massie return for a debate by the Regeneration and Environment Committee. Also to be debated is a motion on Wirral’s nuclear industries. The changes to how Wirral Council will deal with objections to traffic regulation orders (already agreed by the Standards and Constitutional Oversight Committee will also be discussed. This public meeting also starts at 6.00p.m.

On Thursday you are literally spoilt for choice for public meetings and if I wished I could probably spend all day filming them!

The Merseyside Police and Crime Panel meets starting at 10.00am in the Council Chamber in Huyton. On the agenda are updates on serious and organised crime, the appropriate adult scheme, sustaining excellence, a home office pilot for mental health nurses to be colocated in custody suites, a night-time levy consultation (the consultation has already finished but just applies to Liverpool and 70% of the levy on licenced premises will go the police for policing Liverpool’s night-time economy), proposals for future Chief Constable recruitment and other routine items.

The Merseytravel Committee of the Liverpool City Region Combined Authority meets starting at 2.00pm in the Authority Chamber, 1st floor, No. 1 Mann Island, Liverpool, L3 1BP.

Other than minutes and the co-option of Cllr Joan Lilly (who replaces the late Cllr Sharp), councillors will hear an update on smart ticketing, discuss the Merseytravel Fees and Charges Review for 2016/17 and a report on delivering an improved bus "offer".

Then in the evening at Wallasey Town Hall starting at 6.00pm Wirral Council’s Transformation and Resources Policy and Performance Committee meets. Councillors will debate a motion on freedom of information requests proposed by the Lib Dems (I should declare an interest here as it relates in part to Information Commissioner’s Office decision notices that relate to my requests), security of access to Council issued devices and a report on the Council’s social media policy and its appendix.

On that last report I should also declare an interest as their current social media policy by my initial reading of the policy/report to councillors seemed to state that Wirral Council employees (unless they can prove some business need such as the press office) were prevented from accessing this blog, the associated Facebook Group, Twitter account and as mentioned in the report itself also video of public meetings of Wirral Council on Youtube. However a reader has left a helpful comment stating that this blog isn’t blocked which is useful information I am interested to know.

I’d better declare a financial interest as Youtube pays me a very small amount in royalties from videos I’ve filmed (and by small I mean £1.10p for October 2015). In fact Wirral Council blocks employees from watching its own Youtube channel.

If the new policy goes ahead, Wirral Council employees will be allowed to read this blog (after writing this a reader left a comment to say they already can despite this blog falling into the social media category) and the above sites that fall into the social media category in their breaks.

However Big Brother, sorry Wirral Council will be watching what they get up to, so who knows what red flags you’ll raise if you read this blog or Wirral Leaks or well something really subversive like Wirral Council’s Youtube channel!

So that’s the round up for the week, I used to also provide a quick overview of what’s happening this week local government wise in two more open and transparent public bodies the House of Commons/House of Lords which you can watch online.

This afternoon starting at 4.00pm the Communities and Local Government Select Committee will discuss the Cities and Local Government Devolution Bill. The Cities and Local Government Devolution Bill has implications for Merseyside over an elected Mayor in 2017 and the devolution changes that have already received a lot of press coverage. As I’ve seen at least one local government officer here in Merseyside refuse to answer politicians’ questions about the government’s side of what’s happening, this looks like an interesting opportunity to hear about what’s happening from another perspective.

Tomorrow starting at 9.25am, the Public Bill Committee will discuss the Housing and Planning Bill. At the same time (starting at 9.30am) the Education Select Committee will discuss Holocaust Education and in the afternoon starting at 3.00pm the Treasury Select Committee will ask questions of the Chancellor on the Comprehensive Spending Review (which is only partly related to local government). In the House of Lords a Select Committee will be discussing the built environment starting at 10 am.

On Wednesday morning starting at 8.55am the Second Delegated Legislation Committee will discuss the Draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code E) Order 2015. For those not familiar with police procedure Code E relates to the audio recording of interviews with suspects. Starting at 9.30am the Work and Pensions Select Committee will discuss the local welfare safety net, also at 9.30am the Education Select Committee will discuss regional school commissioners, the Treasury Select Committee will continue debating the Comprehensive Spending Review starting at 2.15pm and the Public Accounts Committee will discuss reform of the rail franchising programme.

Thursday sees more discussion of the Housing and Planning Bill by the Public Bill Committee in two sessions starting at 11.30am and 2.00pm. The House of Lords Select Committee will continue to discuss the built environment and hear from a former Chief Executive of the Planning Inspectorate.

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Why did Wirral Council spend £48,384 on a London-based barrister in benefits battle with landlord?

Why did Wirral Council spend £48,384 on a London-based barrister in benefits battle with landlord?

                                                          

ICO Information Commissioner's Office logo
ICO Information Commissioner’s Office logo

For those who don’t remember Wirral Council’s motto is "by faith and foresight" and last night’s meeting of Wirral Council’s Audit and Risk Management Commmittee (which you can watch in full by following that link) had a number of comments and queries by councillors about why when Wirral Council seeks legal advice from outside third parties, the usual procurement rules don’t apply.

By strange coincidence, that very day and an hour before the Audit and Risk Management Committee started, Wirral Council finally responded (in part) to a Freedom of Information Act request of mine made on the 23rd March 2015 for a two-page fee note for the services of a barrister called Miss Jennifer Richards QC.

Many justifications were made at the Audit and Risk Management Committee meeting for Wirral Council’s legal expenditure, such as paying for the best advice. Miss Jennifer Richards QC’s services came with a price tag of £48,384 so I’m not surprised that Wirral Council spent 8 months wasting my time and theirs by arguing about whether I should have access to this (until the Information Commissioner’s Office issued decision notice FS50585536) which I can summarise in the following sentence.

Stop being silly Wirral Council and just give John a copy of the invoices within 35 days (or appeal within 28 days) otherwise it may be dealt with as contempt of court)!

Although this may seem for a small amount of legal expenditure in the grand scheme of things, it’s just one of a series of legal expenses for Wirral Council in a case that ended up in the Court of Appeal and is in some ways connected to the Anna Klonowski Associates/Martin Morton issues and Wirral Council’s Department of Adult Social Services.

You can read that final Court of Appeal judgement online for yourself ([2012] AACR 37, [2012] EWCA Civ 84, [2012] PTSR 1221, [2012] WLR(D) 31), but this was an appeal from an earlier decision to the Upper Tribunal of the Administrative Appeals Chamber, see [2011] UKUT 44 (AAC).

As referred to in that later decision it was about “a protracted dispute between Salisbury Independent Living (“SIL”) and Wirral Metropolitan Borough Council (“the local authority”) concerning housing benefit claimed by SIL to be due to its tenants and former tenants.

I have mentioned in a question at a public meeting to a councillor before that there is a cost to the public purse in legal expenses for Wirral Council not resolving issues and then these matters ending up being adjudicated by the courts.

In the interests of openness and transparency I am reproducing the invoice supplied below in full (the scan with bits blacked out by Wirral Council is of a rather poor quality).

Thirty Nine Essex Street (or 39 Essex Chambers) is the name of the London-based chamber of barristers. Weightmans is a firm of solicitors that does a lot of work for Wirral Council.

DX stands for document exchange (it’s a system that legal practices use for exchanging documents). DWP stands for Department for Work and Pensions. It seems this invoice is for the earlier Upper Tribunal stage of the legal proceedings (I hate to think what the total legal expenditure comes to for this whole case as that decision was then appealed by Wirral Council to the Court of Appeal).

Yes there are typos in the invoice (which I’ve left in the copy below). If I’ve made any mistakes in typing it up compared to the original please leave a comment pointing out where I’ve made a mistake.

In converting it from print to HTML I’ve tried to keep the formatting as close to the printed invoice as possible.


ThirtyNine
ESSEX STREET

LONDON WC2R 3AT

Telephone: 0208 7832 1111 Facsimile: 020 7353 3978 DX: LDE 298

E mail: clerks@39essex.com

Professional Fees of Miss Jennifer Richards Q.C
VAT Registration No: 606103782



DX: 718100 LIVERPOOL 16
Weightmans LLP (Liverpool)
India Buildings
Water Street
Liverpool
L2 0GA
England
 Your Ref:          MHL/186279/97
Case Ref:          174541
Page: 1/2


Various tenants of Salisbury Independent Living -v- Wirral Metropolitan Borough Council – Upper Tier Tribunal

Court: Upper Tribunal CH/1528/2012



DateDescription of WorkFees VAT
27 Feb 2012Drafting application for permission to appeal from First tier Tribunal to Upper Tribunal£1,650.00330.00
03 Apr 2012Drafting Grounds of Appeal to Upper Tribunal
 
£2,200.00440.00
04 Jul 2012Perusal and Consideration of various documents, emails, correspondence etc and advising by telephone£1,650.00330.00
04 Sep 2012Perusal and Consideration of submissions of Department for work and Pensions filed in support of Upper Tribunal appeal and adsvising by telephone£600.00120.00
06 Sep 2012Preparation for and Advising by Telephone re order of XXXXXXXXXXXX DWP and progress of Upper Tribunal£70.0014.00
10 Sep 2012Perusal and Consideration of draft directions and drafting position statement and further directions for Upper Tribunal = 4 hours£1,100.00220.00
13 Sep 2012Preparation For and Attending Hearing
 
£2,500500.00
25 Oct 2012Between 18th October and today’s date considering bundles of evidence and identifying documents for inclusion in the bundle for the Upper Tribunal£3,000.00600.00
31 Dec 2012Reviewing Trial bundle and drafting skeleton argument
 
£6,325.001265.00
07 Feb 2013Perusal and Consideration of transcripts FTT proceedings and proposed amendments/ corrections
 
£4,125.00825.00

     Note: items marked ‘*’ are previously unbilled




















Rate Fees V.A.T. TOTAL FEES C/Fwd C/Fwd
20.00% £40320.00 £8064.00 TOTAL VAT C/Fwd
TOTAL DUE C/Fwd
Rendered on 21 Feb 2013, 22 Feb 2013, 05 Mar 2013, 28 Mar 2013, 01 May 2013, 03 May 2013, 13 Jun 2013
THIS IS NOT A TAX INVOICE
 
04 Jul 2013
 

Please make payment to the following account: XXXXXXXXXXXX

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We also accept payment by cheque to XXXXXXXXXXXX
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 Your Ref:          MHL/186279/97
Case Ref:          174541
Page: 2/2


Various tenants of Salisbury Independent Living -v- Wirral Metropolitan Borough Council – Upper Tier Tribunal

Court: Upper Tribunal CH/1528/2012



DateDescription of WorkFees VAT
25 Feb 2013Preparation For and Attending Hearing
Preparation beofre trial 30 hours
Preparation after court 4 hours
Full day in court
£12,500.002500.00
26 Feb 2013Refresher
Ful;l day in court
Preparation 4 hours after court
£2,000.00400.00
27 Feb 2013Refresher
Full day in court
Preparation 1 hour
£2,000.00400.00
04 Sep 2012Perusal and Consideration of Respondents’ Post Hearing Note and Drafting Note in Response
 
£600.00120.00
     Note: items marked ‘*’ are previously unbilled




















Rate Fees V.A.T. TOTAL FEES £40,320.00 £8,064.00
20.00% £40320.00 £8064.00 TOTAL VAT £8,064.00
TOTAL DUE £48,384.00
Rendered on 21 Feb 2013, 22 Feb 2013, 05 Mar 2013, 28 Mar 2013, 01 May 2013, 03 May 2013, 13 Jun 2013
THIS IS NOT A TAX INVOICE
 
04 Jul 2013
 

Please make payment to the following account: XXXXXXXXXXXX

XXXXXXXXXXXX
XXXXXXXXXXXX
We also accept payment by cheque payable to XXXXXXXXXXXX
Please quote case number and barrister name on BACS payment and notify us of bank transfer byXXXXXXXXXXXX

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