Will Wirral Council’s Cabinet decide to close Lyndale School on the 31st August 2016?
Will Wirral Council’s Cabinet decide to close Lyndale School on the 31st August 2016?
Councillor Tony Smith 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, Lyndzay Roberts
One of the things I’ve mulled over the past few days are the papers published for the special Cabinet meeting on Thursday 17th December. Due to the volume of paperwork to do with this item, this small piece can’t do justice to the matter so I suggest you read the paperwork for that agenda item on Wirral Council’s website in full.
Sadly for Tranmere Rover’s fans (issues to do with the training ground are agenda item 4) it is agenda item 3 (Report Detailing the Outcome of the Representation Period about the Proposed Closure of The Lyndale School) and its six appendices that is the subject of this piece.
I will probably request an internal review of the Freedom of Information Act request later today as Wirral Council (due to the redactions) have not supplied me with the consultation responses as much information is missing and they haven’t given a reason under the Freedom of Information Act legislation as to why.
I also have put in a request for a question to Cllr Tony Smith at next Monday’s Council meeting (to which I’ll get a supplementary question), the question (that I emailed in on the 4th December 2014) is this:
This is my question for the Council meeting on the 15th December 2014 to Cllr Tony Smith (Cabinet Member for Children and Family Services).
——————————————————————————————————-
Wirral Council recently had a four-week consultation on the closure of the Lyndale School in Eastham and there will be a special Cabinet meeting later this month on the 17th December 2014.
Can you please answer:
(a) how many responses were received by Wirral Council to the latest four-week consultation on closure of the Lyndale School,
(b) whether the text of the responses to the latest four-week consultation will be published in full (rather than a summary in a Cabinet report) and if so when,
(c) whether all Cabinet Members making a decision on the 17th December 2014 will in advance of making a decision at the meeting of the 17th December 2014 have read all the written consultation responses to the four-week consultation on closure prior to making their decision on the 17th December 2014
and
(d) whether all Cabinet Members making a decision on the 17th December 2014 will in advance of making a decision at the meeting of the 17th December 2014 have read the statutory guidance for decision makers on this matter issued earlier this year by the government which is available online?
——————————————————————————————————-
Obviously parts (a) and (b) have been answered by the Cabinet papers being published. Hopefully in answer to (c) he will give the answer that he and the other Cabinet Members will find the time between now and the Cabinet meeting on Thursday evening to read the 99 pages of consultation responses and in answer to (d) the 76 pages of statutory guidance.
The current recommendation from officers is that the school is not closed on the 31st December 2015, but is closed on the 31st August 2016 instead.
There are many matters I could write here about the decision to be made, however I will make these points. If I remember correctly Wirral Council’s constitution in Article 13 (principles of decision-making) specifically Article 13.2 states that when reaching decisions councillors (bear in mind Council here also means decisions made by Wirral Council’s Cabinet) that:
“All decisions of the Council will be made in accordance with the following principles:
(a) proportionality (i.e. the action must be proportionate to the desired outcome);
(b) due consultation and the consideration of professional advice from officers;
(c) respect for human rights;
(d) a presumption in favour of openness;
(e) clarity of aims and desired outcomes; and
(f) Wednesbury reasonableness (i.e. the decision must not be so unreasonable that no reasonable Council could have reached it, having taken into account all relevant considerations, and having ignored irrelevant considerations). ”
Some interesting points I wish to make here, only the professional advice from officers needs to be considered. If officers are for example giving amateurish (not professional) advice or have flat out got things wrong it doesn’t need to be factored into the decision.
The consultation responses have been redacted heavily but the advice of officers hasn’t.
What are the clear aims of closing down the Lyndale School (on whatever date)?
Bearing in mind they have a legal duty, that is they must pay regard to the statutory guidance at all stages of the decision-making process on closing the school (for example at the earlier Cabinet meetings, the Council meeting, the Coordinating Committee meetings) as the statutory guidance (published in January 2014 and presumably there was earlier guidance before this) hasn’t been included on the agenda until now can that actually be proved for the earlier decisions that led to this?
Have all the human rights considerations been properly considered? There are matters beyond what I’ve written here that I may bring up in my supplementary question on Monday evening.
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UPDATED: 9 Labour councillors vote to continue to next stage of consultation on closing Lyndale School despite concerns raised
UPDATED: 9 Labour councillors vote to continue to next stage of consultation on closing Lyndale School despite concerns raised
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 being 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
Wirral Council’s Coordinating Committee (which comprises fifteen councillors, two parent governor representatives, a Catholic rep, is required to have an Anglican rep but at this stage I don’t really know why there isn’t one), met on the evening of 2nd October to reconsider the Cabinet decision of 4th September 2014 which made a decision to consult on closure after the “consultation” earlier this year. Neither of the two parent governor representatives (who have speaking and voting rights) nor the Catholic representative (who also has speaking and voting rights) were present.
According to correspondence received hours before the meeting, a senior Wirral Council officer stated they have previously tried to persuade the Church of England to appoint an Anglican representative, but have failed and refers to this as merely an “anomaly”.
Here is the list of the people who made the decision itself and were there on the night, including matters such as whether they are spokesperson, Chair, Vice-Chair and which political party. I have listed people who are on the committee first, it is unclear to me who the Conservative spokesperson was or whether it was Cllr Bruce Berry or Cllr Leah Fraser who was deputising for him:
Labour
Cllr Moira McLaughlin (Chair), Labour
Cllr Paul Doughty (Vice-Chair), Labour
Cllr Janette Williamson, Labour
Cllr Michael Sullivan, Labour
Cllr Denise Roberts, Labour * note deputy for either Cllr Phillip Brightmore, Cllr Anita Leech, Cllr Christina Muspratt or Cllr Jerry Williams
Cllr Harry Smith, Labour * note deputy for either Cllr Phillip Brightmore, Cllr Anita Leech, Cllr Christina Muspratt or Cllr Jerry Williams
Cllr James Crabtree, Labour * note deputy for either Cllr Phillip Brightmore, Cllr Anita Leech, Cllr Christina Muspratt or Cllr Jerry Williams
Cllr Ron Abbey, Labour * note deputy for either Cllr Phillip Brightmore, Cllr Anita Leech, Cllr Christina Muspratt or Cllr Jerry Williams
Conservative
Cllr Wendy Clements, Conservative
Cllr Tom Anderson, Conservative
Cllr Steve Williams, Conservative
Cllr Bruce Berry, Conservative * note deputy for either Cllr Chris Blakeley or Cllr Mike Hornby
Cllr Leah Fraser, Conservative * note deputy for either Cllr Chris Blakeley or Cllr Mike Hornby
Lib Dem
Cllr Phil Gilchrist, Liberal Democrat spokesperson
So to summarise, that is eight people on the committee and seven deputies substituting for people who are on the committee but chose to send a deputy in their place for reasons best known to themselves.
Ultimately the decision taken at the end of a long meeting (there were a series of votes at the end on whether to uphold the decision or refer it back to Cabinet to reconsider based on concerns councillors had) was to uphold the Cabinet decision of the 4th September 2014. This was taken on a majority of 9 votes to 6. Each of the alternative recommendations failed on a vote of 6 to 9. The alternative recommendations which were lost were proposed by by Cllr Phil Gilchrist (Lib Dem spokesperson) and Cllr Steve Williams (Conservative councillor).
Labour councillors (9) voted to uphold the Labour Cabinet decision. The joint votes (6) of the Conservative councillors (5) and Liberal Democrat spokesperson (1) voted against Labour’s recommendation.
Although six councillors were in favour of not implementing the Cabinet decision of 4th September and referring it back to Cabinet with their concerns, they were outvoted by the nine Labour councillors who voted against.
This means the Director of Childrens Services, Julia Hassall can now go ahead to the next stage of closing the Lyndale School which is a short consultation (lasting about a month). Even if Wirral Council were taken to court over this matter, Surjit Tour made it quite clear in a formal letter to me that they would not pause the process and would just carry on doing this, regardless of many outstanding legal concerns. In the interests of transparency at this point, I refer to the exchange of letters between myself (mainly the one of 8th September 2014) and Surjit Tour in this matter about the possibility of legal action through the courts.
He is of course entitled to his opinion on this matter, so am I. He has to work within the policy and budget framework of Wirral Council and is in a politically restricted post, I have to consider other concerns such as financial, legal, political and commercial (it’s complicated basically).
Following this consultation Wirral Council’s Cabinet will make a further decision at some future point on closure of the Lyndale School. As it was such a long meeting and negotiations over potential access to Wirral Council’s wi-fi network for live broadcast of meetings as they happen have stalled, only part of the footage of the five-hour meeting at the time of writing has been uploaded. You can watch video of part of the meeting below.
On a more personal note and this is just my opinion, I would like to point out (briefly) that politics comprises objective and subjective tests that can be applied when determining decisions.
Nobody expects politicians to be experts as they are there to represent the public interest. In certain areas such as law and other areas they have to rely on the internal advice of Wirral Council officers. That is why officers giving advice are in politically restricted posts and can’t really be seen to be taking sides in a party political matter.
Although it would be unlawful to drop Lyndale School’s budget by more than 1.5% under the minimum funding guarantee regulations this year (2014-15) compared to its 2013-14 budget, the government is currently consulting on draft regulations which would remove this current protection under the minimum funding guarantee for SEN places in 2015-16. However there is a current consultation on regulations which cover 2015-16 and the draft regulations put to Parliament may differ from those being consulted on.
In fact you only have to look at how the regulations on filming meetings of Wirral Council changed after the consultation and lobbying by people such as myself to show that that is a distinct possibility.
However how much Lyndale School receive this year for the education of children there and in future years is down to a complicated combination of the Wirral Schools Forum, Cabinet, Council and other factors beyond anybody’s reasonable control. A schools formula is arrived at locally by a combination of the Wirral Schools Forum, Cabinet and Council. This schools formula determines how much each individual school gets each year (and is changed each year).
In essence though, this shouldn’t really be about money. The law allows Wirral Council to close a school, however naturally they have to plan for what happens next to the existing pupils. Some will transfer to secondary school well before the planned closure date of January 2016. This should really be about the children of Lyndale School.
I will recite a little personal history here. My primary school was changed (when I was 10), not because of closure but because my parents had moved three miles away and transport to and from school was taking my mother longer than it was when I only lived a mile away.
Therefore my perception of what happens to a primary aged child when you do this to them, is somewhat clouded by that. Twenty-four years later, I still resent that decision, as I do not feel my interests were properly considered especially considering the fact I would’ve left that primary school within the next twelve months to go to secondary school and that we had moved house many years previous.
I can understand though that it resulted in a reduced carbon footprint as I could walk to the school I was transferred to. It ended up with me being admitted to hospital for a week though and knowing how much that costs makes it a false economy.
The children of Lyndale School are more fragile than I was at aged ten. Wirral Council identify themselves in a Equality Impact Assessment that the disruption will have an effect on the children.
However a letter from their legal department takes the contrary view that any potential risks can be mitigated against. Personally I have no confidence in Wirral Council that the potential risks have been mitigated at this stage, as my feeling is that such detailed planning won’t actually happen until a decision to close (or not close) the Lyndale School has been finally made at some future point. At this stage officers may consider behind the scenes that spending officer time and resources on planning for something that might not happen would not be value for money. However all scenarios should be explored if Wirral Council insists on going down this route.
Considering the high costs already expended by Wirral Council on their plan to close Lyndale School, one wonders if that seemingly large and endless budget allocation had instead been used for keeping the Lyndale School open, whether it would’ve been a better use of public funds. Each time they hold a public meeting it costs thousands of pounds and there have been many of these so far. Such is the price of democracy I suppose which has deliberately made closing a school a long and drawn out process so that a “spanner can be put in the works” to stop it at any one of many stages.
Some people are surprised it has not been stopped before now. However looking at the wider aspects of the way society treats disabled people, prejudice and other matters I am not wholly unsurprised by this course of events.
Below is a playlist from when the meeting started. When the video was shown due to an outstanding unresolved copyright claim regarding one of the two pieces of music used in it by Sony Music Entertainment, the video has sadly had to be edited out of the footage of the meeting. However it can be viewed elsewhere online.
Please accept YouTube cookies to play this video. By accepting you will be accessing content from YouTube, a service provided by an external third party.
Expense claim forms for Councillor John Salter 2013 to 2014
Expense claim forms for Councillor John Salter 2013 to 2014
Councillor John Salter is a Labour Party councillor for Seacombe ward. His five expense claims are all for travel to the Manchester Port Health Authority (which are mainly for trips to Runcorn). During this period he was Wirral Council’s only representative on the Manchester Port Health Authority which according to its website is “the local authority for the Manchester Ship Canal and River Weaver including the ports of Eastham, Ellesmere, Manisty, Stanlow, Ince, Weston, Runcorn, Partington, Irlam, and Salford.” Its website goes on to state “The Authority, originally Manchester Port Sanitary Authority, was established in 1896 following the designation of the Manchester Ship Canal as a customs port.”
Councillor John Salter’s expense claims (below) are for travel in his car to and from meetings of the Manchester Port Health Authority as Wirral Council’s representative.
Cllr John Salter expenses claim page 1Cllr John Salter expenses claim page 2Cllr John Salter expenses claim page 3Cllr John Salter expenses claim page 4Cllr John Salter expenses claim page 5
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Wirral Council publish draft minutes on 4th September Cabinet decision on Lyndale School
Wirral Council publish draft minutes on 4th September Cabinet decision on Lyndale School
Councillor Tony Smith (Cabinet Member for Children and Family Services) at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School L to R Cllr Stuart Whittingham, Cllr Tony Smith (Cabinet Member for Children and Family Services), Cllr Bernie Mooney and Lyndzay Roberts
Wirral Council has published the draft minutes of the special Cabinet meeting held on the 4th September 2014 to consider the future of Lyndale School.
Councillors have between the date the draft minutes were published and the 18th September 2014 to decide whether they wish to “call in” the Cabinet decision and have it reviewed by a meeting of the Coordinating Committee as long as a minimum of six (out of sixty-six) councillors call for it to be called in.
A copy of the draft minutes for the Cabinet meeting are below.
40.
Members’ Code of Conduct – Declarations of Interest
Members of the Cabinet are asked to consider whether they have any disclosable pecuniary or non pecuniary interests in connection with any item(s) on this agenda and, if so, to declare them and state the nature of the interest.
Minutes:
Councillor S Whittingham declared a personal interest by virtue of his appointment as a school governor at Millbrook Special School.
41.
Minutes
The minutes of the last meeting have been printed and published. Any matters called in will be reported at the meeting.
RECOMMENDATION: That the minutes be approved and adopted.
Minutes:
RESOLVED:
That the minutes of the last meeting held on 7th July 2014 be approved as a correct record.
42.
Chairs Announcement
Minutes:
The Leader of the Councillor indicated that following requests received, prior to the consideration of TheLyndale School item, the Cabinet will be show a video from The Lyndale School first
At its meeting held on 14 July 2014, Council considered a Notice of Motion proposed by Councillor Paul Hayes in relation to The Lyndale School.
Council requested the Cabinet consider this along with all options relating to Lyndale School together with the outcome of the consultation exercise at a special meeting.
(Minute 18 is attached)
Minutes:
At the meeting of the Council held on 14 July 2014 (minute 18 refers), the attached Notice of Motion, proposed by Councillor Paul Hayes and seconded by Councillor Jeff Green, in relation to The Lyndale School, was debated.
Council requested the Cabinet consider this along with all options relating to the Lyndale School together with the outcome of the consultation exercise at a special meeting.
RESOLVED:
That the Notice of Motion in the relation to The Lyndale School be noted.
Prior to consideration of the item the Cabinet considered a video which had been submitted by Ms D. Hughes.
The Leader of the Council, having welcomed everyone to the meeting, invited Ms Zoe Anderson, Parent Governor and parent of a child at The Lyndale School to address the Cabinet. Ms Anderson, spoke on behalf of the staff and parents of the school and spoke of the particular needs of the children at The Lyndale and gave a personal account of her own child’s needs and experiences which she felt could only be provided for at The Lyndale School.
Speaking on behalf of parents Ms Anderson made representations in strong support of retaining The Lyndale School, the consultation responses, the expert report and the proposed options.
Ms Anderson specifically stated that the staff at The Lyndale had gained the trust of all the parents to look after their child’s medical, physical and educational needs – which was the fundamental concern. Ms Anderson highlighted the excellent support, care and education provided all the children at The Lyndale School. The school had excellent facilities including very good outside space to which the children had full access. Ms Anderson commented that The Lyndale School provided the children with a wonderful sensory environment that was safe and relaxed. She asked that a full review be undertaken of the care given to each individual child by staff at The Lyndale School.
Ms Anderson commented that the school’s staff provided specialised care, support and education; they were adept at communicating effectively with the children – skills which took many years to perfect. She stated that it took time to build up trust, and it was unfair that staff did not know what was to happen from week to week. The school played an integral part in the community, and interacted and participated with other neighbouring schools. Ms Anderson shared/circulated a Parents Survey that had been undertaken that showed parents wanted their children to remain at The Lyndale School.
Within her representations, Ms Anderson asked that the funding bands be revisited to reflect the needs of each individual child that attended the school. She highlighted that the school had previously asked for the Schools Forum to revisit the schools banding due to the change in circumstances.
In relation to the consultation document, Ms Anderson reiterated that The Lyndale School was not looking for the Council to enhance the funding but to maintain the funding that was already in place. Ms Anderson stated that parents had confidence in the school but not the process that the parents were involved in. She reminded Cabinet Members that the Council had a legal obligation to listen to the parents under the SEN Test. Ms Anderson drew an analogy with medical consultants who always ask parents for their views and thoughts.
Ms Anderson stated that consultation responses clearly showed overwhelming support for The Lyndale School to be retained. Comments were also made in relation to the consultant (Ms L Wright) and her report.
Concerns were expressed that the ethos of The Lyndale School would not be replicated at either the Stanley orElleray Park Schools, not least because the children attending these schools had different needs. Ms Anderson stated that the suitability of expanding these two schools was based upon assumptions, which was not evidence; and that simply providing training to staff was no substitute for experience. Concerns were raised over health and safety issues and the need for both schools to be upgraded at considerable cost.
Ms Anderson concluded by stating that experienced and effective staff would leave due to the uncertainty and proposals. There would be no investment in The Lyndale School and it would instead stagnate; and parents would not want or be willing to subject their children to such an outcome.
The Leader of the Council thanked Ms Hughes for her informative video and Ms Anderson for her representations. He acknowledged and confirmed that he appreciated the time and effort expended by everyone in supporting the school and pupils. He indicated that Members of the Cabinet had read all reports, representations and the feedback received in relation to The Lyndale School and had also met with parents and staff. He sincerely thanked all staff and parents.
Introduced by the Director of Children’s Services, the Cabinet considered the report from the Director of Children’s Services which detailed the outcome of the consultation on the closure of The Lyndale School.
The report outlined the responses received during the consultation, reviewed alternative options identified, as well as detailing the outcome of the SEN Improvement Test.
The report indicated that, on 16 January 2014 (Minute 129 refers) Cabinet agreed to undertake a consultation on the closure of The Lyndale School. The consultation closed in June 2014. The report recommended that Cabinet considered the contents of the report and made a decision on this matter.
The Director of Children’s Services commended the care, quality and passion of the staff at The Lyndale School which was endorsed by Ofsted and noted their excellent quality of care towards all pupils who attended the school and indicated that she along with her Department would be working closely with all staff and parents to end the uncertainty surrounding the future of The Lyndale School and bring this to a conclusion as soon as possible for both children, parents, and staff.
In relation to consultation, the Director of Children’s Services indicated that she had met with parents,’ school staff, school governors and an MP; Councillors had also undertaken site visits to the schools and various public meetings had been held to encourage consultation and feedback.
In relation to concerns raised by parents regarding health and safety at Elleray Park and Stanley School these were sent to both Headteachers of the schools who responded to the Council who then responded to the parents questions.
In relation to staff, the Director of Children’s Services indicated that she had spoken to all staff at The Lyndale School when she visited as and reiterated that those affected would be fully supported throughout the transition as far as the Council can do.
In response to comments from parents, the Director of Children’s Services indicated that there had been no evidence to suggest that parents had been steered away from The Lyndale School by Children’s Services officers although accepted that due to the uncertainty that surrounded The Lyndale School this could be a contributing factor.
In relation to the option in which it was proposed that The Lyndale School close and a new PMLD base be opened on the new Foxfield site, the Director of Children’s Services indicated that she had recently spoken with theHeadteacher of Foxfield School who had spoken with his Chair of Governors and the Headteacher indicated that it would be inappropriate to have a primary setting even in a separate unit, therefore this option could not be considered.
The Chair welcomed Ms Lynn Wright, Independent Consultant, who had been appointed to consult on the proposal to close The Lyndale School, the options, including those which had emerged throughout the consultation period, and give her view on the SEN Improvement Test.
Ms Wright gave feedback on her findings in relation to each of the options considered; the full report was attached as an appendix.
In response to the Council’s intention to increase the closure period from 2015 to 2016, Ms Wright advised against this as this would have huge implications for the pupils and staff that already had gone through a long period of uncertainty. Ms Wright indicated that the funding system had changed nationally and that schools that were no longer viable or sustainable should not be allowed to continue.
The Leader of the Council thanked Ms Wright for her detailed report and feedback on the considered options.
The Cabinet Member for Children and Family Services thanked all staff and parents for their comments and feedback and indicated that the Cabinet had considered all options in a transparent manner and had listened carefully to what had been said. Cabinet Members were reminded to have regard to the Council Referral under the previous Agenda Item in considering this matter. The Cabinet Member reiterated the need for stability at The Lyndale School and that this had been looked at for both financial and educational reasons, which had to be taken into consideration due to the funding formula changes introduced by Central Government.
Councillor T Smith moved the following motion duly seconded by G. Davies:
(1) Cabinet thanks all those who have participated in the consultation exercise, with particular regard to submissions from parents of children at The Lyndale School;
(2) Having reviewed the responses received during the consultation process, analysed the alternative options and applied the SEN Improvement Test, it is recommended that:
Statutory notices be published in respect of the closure of The Lyndale School from January 2016.
That Wirral Council, under the leadership of the Director of Children’s Services, work individually, with children and families, towards effecting a smooth and supportive transition to an alternative place at one of the following schools:
Elleray Park Special School
Stanley Special School
Another appropriate school
In doing so, that the Director of Children’s Services, in acknowledgement of the close relationships that exist between staff and pupils at The Lyndale School, investigates if staff could be employed, where possible, at receiving schools, (subject to legal practice and the approval of governing bodies).
The Director of Children’s Services be authorised to take all necessary steps to publish the proposals and ensure the prescribed procedures are followed, including requesting permissions from the Secretary of State, in furtherance of the proposals.
A further report be brought on the outcome of the publication of the statutory notices.
and outlined the following reasons for the motion.
Having looked at all the options, and applied the SEN Improvement Test, it is our opinion that, while we recognise the special place that The Lyndale School has in the affection of parents and children, the continued operation and maintenance of a school of this size will not meet the future educational needs of the children, nor is a financially viable option, especially when there are good alternative options available.
The Council has a responsibility to ensure for the sustainable future provision of education for the pupils of The Lyndale School. In addition, we have to manage resources effectively for all schools and the school population.
This was a difficult decision to make, and we would like to affirm our continued intention to work positively with the families and the children affected, and reassure parents of our continued commitment to their child’s wellbeing and education.
Councillor P. Davies moved an amendment, duly seconded by Councillor Mooney, that an additional point be included in the motion, namely:
The Director of Children’s Services to ensure that Education, Health and Care Plans for all pupils of The Lyndale School are completed by 31st October 2014.
which was carried unanimously.
IT WAS RESOLVED: That
(1) Cabinet thanks all those who have participated in the consultation exercise, with particular regard to submissions from parents of children at The Lyndale School;
(2) Having reviewed the responses received during the consultation process, analysed the alternative options and applied the SEN Improvement Test, it is recommended that:
Statutory notices be published in respect of the closure of The Lyndale School from January 2016.
That Wirral Council, under the leadership of the Director of Children’s Services, work individually, with children and families, towards effecting a smooth and supportive transition to an alternative place at one of the following schools:
EllerayPark Special School
StanleySpecial School
Another appropriate school
In doing so, that the Director of Children’s Services, in acknowledgement of the close relationships that exist between staff and pupils at The Lyndale School, investigates if staff could be employed, where possible, at receiving schools, (subject to legal practice and the approval of governing bodies).
The Director of Children’s Services be authorised to take all necessary steps to publish the proposals and ensure the prescribed procedures are followed, including requesting permissions from the Secretary of State, in furtherance of the proposals.
A further report be brought on the outcome of the publication of the statutory notices.
The Director of Children’s Services to ensure that Education, Health and Care Plans for all pupils of The Lyndale School are completed by 31st October 2014.
A letter to Wirral Council about the 29 ways they allegedly got the Lyndale School decision wrong
A letter to Wirral Council about the 29 ways they allegedly got the Lyndale School decision wrong
Councillor Tony Smith (Cabinet Member for Children and Family Services) at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School L to R Cllr Stuart Whittingham, Cllr Tony Smith (Cabinet Member for Children and Family Services), Cllr Bernie Mooney and Lyndzay Roberts
Below is a copy of a letter emailed to Wirral Council’s Surjit Tour, the nine councillors on the Cabinet that took the “decision” and Julia Hassall.
Jenmaleo,
134 Boundary Road,
Bidston
Wirral
CH43 7PH
Wirral Council
Metropolitan Borough of Wirral
Wallasey Town Hall,
Brighton Street,
Wallasey,
Merseyside,
CH44 8ED,
England
8th September 2014
By email
Surjit Tour surjittour@wirral.gov.uk
Cllr Phil Davies phildavies@wirral.gov.uk
Cllr Tony Smith tonysmith@wirral.gov.uk
Cllr Bernie Mooney berniemooney@wirral.gov.uk
Cllr Stuart Whittingham stuartwhittingham@wirral.gov.uk
Cllr Chris Meaden chrismeaden@wirral.gov.uk
Cllr Chris Jones christinejones@wirral.gov.uk
Cllr Adrian Jones adrianjones@wirral.gov.uk
Cllr George Davies georgedavies@wirral.gov.uk
Cllr Pat Hackett pathackett@wirral.gov.uk
Julia Hassall juliahassall@wirral.gov.uk
LETTER BEFORE CLAIM
Proposed claim for judicial review
1. TO
SURJIT TOUR
Legal and Member Services
Metropolitan Borough of Wirral
Wallasey Town Hall,
Brighton Street,
Wallasey,
Merseyside,
CH44 8ED,
England
2. The claimant
MR JOHN BRACE
Jenmaleo,
134 Boundary Road,
Bidston,
CH43 7PH
3. Reference details
Amended Cabinet recommendation of 4th September 2014 with respect to Lyndale School (agenda items 4&5)
4. The details of the matter being challenged
What is being challenged is the decision of Wirral Council’s Cabinet on the evening of the 4th September 2014 to make the amended recommendation which is copied below. More specifically the details of the matter being challenged are 1.1, 1.2, 1.3, 2.0 and 2.1 of the recommendation.
“CABINET – 4TH SEPTEMBER 2014
THE LYNDALE SCHOOL
RECOMMENDATION
1.1 Cabinet thanks all those who have participated in the consultation exercise, with particular regard to submissions from parents of children at The Lyndale School.
1.2 Having reviewed the responses received during the consultation process, analysed the alternative options and applied the SEN Improvement Test, is it recommended that:
Statutory notices be published in respect of the closure of The Lyndale School from January 2016.
That Wirral Council, under the leadership of the Director of Children’s Services, work individually, with children and families, towards effecting a smooth and supportive transition to an alternative place at one of the following schools:
Elleray Park Special School
Stanley Special School
Another appropriate school
In doing so, that the Director of Children’s Services, in acknowledgement of the close relationships that exist between staff and pupils at The Lyndale School, investigates if staff could be employed, where possible, at receiving schools, (subject to legal practice and the approval of governing bodies).
The Director of Children’s Services be authorised to take all necessary steps to publish the proposals and ensure the prescribed procedures are followed, including requesting permissions from the Secretary of State, in furtherance of the proposals.
A further report be brought on the outcome of the publication of the statutory notices.
1.3 That the Director of Children’s Services to ensure that Education, Health and Care Plans for all pupils of the Lyndale School are completed by the 31st October.
2.0 REASONS FOR RECOMMENDATION
2.1 Having looked at all the options, and applied the SEN Improvement Test, it is our opinion that, while we recognise the special place that The Lyndale School has in the affection of parents and children, the continued operation and maintenance of a school of this size will not meet the future educational needs of the children, nor is a financially viable option, especially when there are good alternative options available.
The Council has a responsibility to ensure for the sustainable future provision of education for the pupils of The Lyndale School. In addition, we have to manage resources effectively for all schools and the school population.
This has been a difficult decision to make, and we would like to affirm our continued intention to work positively with the families and the children affected, and reassure parents of our continued commitment to their child’s wellbeing and education.”
5
The issue
Brief summary of facts:
Wirral Council’s Cabinet made a key decision on the evening of 4th September 2014 at a public meeting to proceed to a second round of consultation on the closure of the Lyndale School. The recommendation agreed by nine councillors is outlined above.
Why it is contended to be wrong:
It is contended to be wrong because:
(a) The notice requirements before the meeting were not met.
The actions specified to be taken in advance of the Cabinet meeting in the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 specifically Regulations 9-11 weren’t met. More specifically the document specified in Regulation 9 wasn’t published 28 days before the meeting or the notice in Regulation 10(3)(b) or the notice in Regulation 11(2)(b).
Regulation 9(1) makes it quite clear that if these requirements are not met that “that decision must not be made)
(b) The key decision was made by the wrong people.
In addition to the Cabinet between four and nine other people should’ve been included in the decision. Specifically these are:
between 2-5 parent governor representatives,
a representative of the Catholic diocese and
a representative of the Anglican diocese
These people should have all had voting/speaking rights and been invited to take part in the Cabinet meeting.
Normally Cabinet would not be required to have such representatives on it as it has oversight by the Families and Wellbeing Policy and Performance Committee and Coordinating Committee.
However as a representative of the Anglican diocese has not yet been appointed to the Families and Wellbeing Policy and Performance Committee or the Coordinating Committee due to this lack of oversight the Cabinet was required to have them take part in the decision making on this matter.
This legal requirement is outlined in the School Standards and Framework Act 1998 c.31/ s.499 of the Education Act 1996 c.56 and the underlying regulations such as Regulation 5 of the Local Authorities (Committee System) (England) Regulations 2012 and regulation 5 of The Education (School Organisation Committees) (England) Regulations 1999 and other underlying regulations.
(c) Human Rights issues
Wirral Council have to make decisions that are compatible with the Convention Rights (s.6(1) Human Rights Act 1998 c.42). Specifically these concerns are about Protocol 1 (Article 2), article 2, article 3, article 11 and article 14.
The concerns are briefly outlined below:
Protocol 1 (Article 2) “right to education” as closure of the school would interfere with the parent’s right to “ensure such education and teaching in conformity with their religious and philosophical convictions”
Article 2 “right to life” as closure of the school would possibly cause the death of one or more of its current pupils
Article 3 “prohibition of torture” as closure of the school would be “degrading treatment or punishment” of the parents and pupils
Article 11 “freedom of assembly and association” as closure of the school would interfere with the rights of the pupils, staff and parents to associate with each other and none of the requirements in 11(2) are known to be met
Article 14 “prohibition of discrimination” as:
(a) the school is for severely disabled children therefore closing (whilst not making known closures elsewhere) could be classed as discrimination
(b) the political views of the parents are that the school should not close which has been widely expressed in the media prior to the meeting in opposition to the stated views of the Labour administration at Wirral Council
(c) many of the severely disabled children at the school were born that way
(d) Equality Act 2010 c.15 considerations
Section 13 – the Lyndale pupils (person B) have a protected characteristic (disability). They would be treated less favourably if the school closed as less money would be spent on their education. Furthermore many of the approximately thirty staff have protected characteristics (who will be out of a job if the school closes)
Section 15 – this relates to discrimination arising from disability. The pupils at the school are disabled. Wirral Council would have to show that the treatment is “a proportionate means of achieving a legitimate aim” which has not yet been demonstrated
Section 19 – this relates to indirect discrimination of the parents and family members of the Lyndale pupils
Section 26 – “harrasment”, the closure plans have resulted in a violation of dignity of those with protected characteristics and have intimidated staff, parents and pupils at the school. One example of this would be that the headteacher has left.
Section 27 – the parents have threatened legal action which is a protected act
Section 85 – these plans force the Lyndale School to breach s.85(2)(f) as it subjects pupils and their parents to detriment
Section 86 – this relates to victimisation of the pupils for the conduct of their parents. The parents have petitioned, campaigned and lobbied against closure. The siblings and parents of the children at the Lyndale School are being penalised for this
Section 112 – the way Wirral Council behaved (for example making a false public statement that if the school was closed that staff would be redeployed during the consultation) is aiding contraventions of the Equality Act 2010
Section 149 – “public sector equality duty” Due regard to 149(a), (b) and (c) by Wirral Council has not been given. The same goes for the duties under 149(5)(a) and 149(5)(b). These relate to the proteted characterists of pupils, staff and parents at the school.
Section 150 – “public authorities and public functions” – the Metropolitan Borough of Wirral Council is a “district council” in England as defined in Schedule 19, therefore 150(3), 150(4) and 150(5) apply to it.
Section 158 – “positive action: general” the pupils of Lyndale school have needs that are different from the needs of person that are not disabled. Those that have PMLD (which is a protected characteristic) are a disproportinately low proportion of the school population. The Lyndale pupils are at this school because it’s a special school that caters for the needs of disabled pupils with PMLD. Therefore they will suffer a disadvantage if the school closes. The level of education they receive will change if the school closes and it is alleged that this new provision will not meet their needs.
Section 19 – Wirral Council provides the service of education to the disabled pupils at the Lyndale School. If the school is closed the current (and potential future) disabled pupils would find it “impossible” or “unreasonably difficult” to use the school. Although Wirral Council is a “local education authority in England” and therefore a “relevant body” as defined in s.19(6), it remains to be seen whether education & transport are services that fall under s.19(5)(a) or not.
Section 21 – The adjustment required would be to fund the running costs of the Lyndale School, whilst it is appreciated that Wirral Council is a “local education authority in England” and therefore a “relevant body”, this duty of providers of services to make adjustments could/could not apply to Wirral Council
Section 21B – Wirral Council is a “public authority” and is discriminating against disabled people in carrying out its functions.
Section 21D – Wirral Council is failing in its general duties to:
(1)(a) the need to eliminate discrimination that is unlawful
(1)(b) the need to eliminate harrassment of disabled persons that is related to their disabilities
(1)(c) the need to promote equality of opportunity between disabled persons and other persons
(1)(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons
(1)(e) the need to promote positive attitudes towards disabled persons
(1)(f) the need to encourage participation by disabled persons in public life
Section 28A – “Discrimination against disabled pupils and prospective pupils” This relations to 28A(2) and 28A(1)(a) as Wirral Council is “the local education authority” defined in Schedule 4A. Wirral Council is proposing altering its admission arrangements which discriminate against the current disabled pupils at the Lyndale School. Closure would result in the current pupils being excluded permanently.
Section 28B – Lyndale pupils are being treated less favourably because of reasons realted to their disability/ies. It is unreasonable to assume that Wirral Council does not know they are disabled as it is a special school
Section 28C – “disabled pupils not to be substantially disadvantaged” The Lyndale pupils are being put at a substansial disadvantage compared to persons who are not disabled with regards to the admission arrangemnts.
Section 28F – There has been a failure of the duty of the education authority not to discriminate, it is unknown at this stage what prescribed function this relates to (if any).
Section 49A – In carrying out its functions, Wirral Council is not having due regard to
(1)(a) the need to eliminate discrimination that is unlawful
(1)(b) the need to eliminate harrassment of disabled persons that is related to their disabilities
(1)(c) the need to promote equality of opportunity between disabled persons and other persons
(1)(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons
(1)(e) the need to promote positive attitudes towards disabled persons
(1)(f) the need to encourage participation by disabled persons in public life
Section 2 – This section inserted 21B in the Disability Discrimination Act 2005 (see arguments above for s.21B of the Disability Discrimination Act 2005)
Section 3 – This section inserted 49A in the Disability Discrimination Act 2005 (see arguments above for s.49A of the Disability Discrimination Act 2005)
(g) statutory guidance
Statutory guidance has been issued which includes the application of a test to such proposals known as the “SEN Improvement Test” to such decisions. Wirral Council claims that its plans for closure meet the SEN Improvement Test. The Claimant disagrees that the requirements of the SEN Improvement Test have been met to the preferred option (which is closure of the Lyndale School). This is because:
(i) it would not lead to improved access to education and associated services
(ii) it would not lead to improved access to specialist staff
(iii) it would not lead to improved access to suitable accommodation
(iv) it would not lead to an improved supply of suitable places
(v) there seems little clarity that the host schools mentioned in the decision (Elleray Park and Stanley School) are willing to receive pupils with communication and interaction needs
(vi) there is confusion as to how the proposals will be funded and the planned staffing arrangements that will be put in place
(Set out the date and details of the decision, or act or omission being challenged, a brief summary of the facts and why it is contented to be wrong)
6
The details of the action that the defendant is expected to take are:
(a) to make a written undertaking not implement the decision as an interim measure until a new Cabinet meeting happens,
(b) hold a further meeting of the Cabinet to make a decision that complies with:
(i) the notice requirements for the meeting (SI 2012/2089 Regulations 9-11) and
(ii) the other legal issues addressed in this letter
(c) to carry out a review of the matters raised in this letter and inform the Claimant of the outcome of that review
(d) to inform the Claimant if the decision is implemented and if so from what date
(e) to respond to this letter before the proposed reply date in section 12
(f) meet with Mr. John Brace before the proposed reply date so that these issues can be explored in depth in the hope that litigation can be avoided.
7
The details of the legal advisers, if any, dealing with this claim
N/A
8
The details of any interested parties
Cllr Phil Davies phildavies@wirral.gov.uk
Cllr Tony Smith tonysmith@wirral.gov.uk
Cllr Bernie Mooney berniemooney@wirral.gov.uk
Cllr Stuart Whittingham stuartwhittingham@wirral.gov.uk
Cllr Chris Meaden chrismeaden@wirral.gov.uk
Cllr Chris Jones christinejones@wirral.gov.uk
Cllr Adrian Jones adrianjones@wirral.gov.uk
Cllr George Davies georgedavies@wirral.gov.uk
Cllr Pat Hackett pathackett@wirral.gov.uk
Julia Hassall juliahassall@wirral.gov.uk
9
The details of any information sought
Details of information sought:
(a) a request for a fuller explanation of the reasons for the decision being challenged beyond those that form a part of the recommendation at 2.1
(b) statistical information on staff at the Lyndale School with reference to all protected characteristics
(c) statistical information on Wirral Council’s workforce with reference to all protected characteristics
(d) statistical information on current pupils at the Lyndale School with reference to all protected characteristics
(e) three year projected financial information about the Lyndale School projected budgets supplied to Wirral Council by the Lyndale School governors including total projected expenditure, total projected costs and total projected income
(f) earlier drafts of report titled “Report detailing the outcome of the consultation on the closure of the Lyndale School”
(g) earlier drafts of the report at Appendix 1 titled “The Independent Consultant’s Report”
10
The details of any documents that are considered relevant and necessary
(a) The consultation responses. These are considered necessary as they are referred to in 1.1 and 1.2 of the decision. Although I have already published some, I am unsure whether it is a complete set of consultation responses.
(b) Those documents outlined in section (9) specifically (e) to (g) (financial information and earlier drafts of reports)
(h) details of consultation with staff and relevant trade unions
(i) details of consultation with the governing body at Lyndale School
(j) Principal Educational Psychologist’s report
(k) detail as to how Wirral Council think the preferred option of closure meets the “SEN Improvement Test”
11
The address for reply and service of court documents
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
12
Proposed reply date
24th September 2014
Yours sincerely,
John Brace
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