Are Wirral councillors about to make another Town Hall bungle on education?
Are Wirral councillors about to make another Town Hall bungle on education?
Cabinet 17th December 2014 vote on Lyndale School closure L to R Cllr Tony Smith (Cabinet Member for Education), Cllr George Davies, Cllr Ann McLachlan
Pictured above is Cllr Tony Smith (Cabinet Member for Children and Family Services) who has political accountability to the public for education at Wirral Council.
Regulations that the last Labour government brought in The Education (Parent Governor Representatives) Regulations 1999 require the education committee of a local council, to have a minimum of two and a maximum of five parent governor representatives with voting rights.
Many councils appoint three, so that if one should cease to be a parent governor at that school, die, or indeed not turn up to meetings for six months without sending apologies and therefore be removed it doesn’t drop below two.
As previously stated on this blog, the People Overview and Scrutiny Committee (which covers education) is proposed to be split into two new committees, the Adult Care and Health Overview and Scrutiny Committee and the Children and Families Overview & Scrutiny Committee.
Below is video of Cllr Steve Foulkes explaining why Wirral Council can’t carry on with only one parent governor representative (although at the time the Committee he was referring to had none).
So why are Wirral Council seemingly ignoring this legal requirement in 2017?
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The 6 “missing” pages of Cllr Tony Smith’s expenses claims shed more light on Lyndale School matters
The 6 “missing” pages of Cllr Tony Smith’s expenses claims shed more light on Lyndale School matters
As part of the 2013/14 audit of Wirral Council, I exercised a legal right to a copy of the councillors’ expenses forms. I have published what I received last month (which attracted much public interest), but a lot of pages were still not provided at that point. You can read the earlier nine pages for Councillor Tony Smith here.
The internal processes seem to be that the finance side of Wirral Council ask for these from Human Resources. Human Resources then ask for legal advice. The legal side of Wirral Council then recommend to redact officer names, registration numbers of councillors’ cars, payroll numbers, signatures and other information on these forms. Quite why that whole process takes over two months I’m not quite sure.
As many readers of this blog will know there was a call in of the Cabinet decision of September 4th on Lyndale School which happened during a five-hour public meeting on the evening of October 2nd 2014. The six pages of the Cabinet Member for Education’s expenses (Cllr Tony Smith) I requested in August 2014 but were only supplied to me this morning (17th October 2014).
It shows some meetings which may be of interest to the continuing public debate on Lyndale School. The last meeting with Alison McGovern MP is education related due to its location, however whether it is connected to Lyndale School or a different education matter I am unsure at this point. I include the original six pages below.
Wirral Council also provided me today with a further dozen or so pages of councillors expenses for other councillors that had also been missing from what I had been supplied with. I plan to publish these in the near future.
Date | Description | Departure location | Return time and location| No of miles| Rate
17.5.13 | Visits to Foxfield and Elleray Park School – in role of Cabinet Member | Home | | 10 | 0.40p
9.8.13 | Meeting re Lyndale School with Director + Officers / Hamilton Building | Home | Hamilton | 10 | 0.40p
13.9.13 | Meeting ?? ?? M.P. Alison McGovern and officers / Hamilton | Home | Hamilton | 10 | 0.40p
Cllr Tony Smith expenses claim 2013 page 1 of 6Cllr Tony Smith expenses claim 2013 page 2 of 6Cllr Tony Smith expenses claim 2013 page 3 of 6Cllr Tony Smith expenses claim 2013 page 4 of 6Cllr Tony Smith expenses claim 2013 page 5 of 6Cllr Tony Smith expenses claim 2013 page 6 of 6
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Isn’t it time Cllr Phil Davies remembered his 2009 U-turn on closure of Ridgeway and did the same now on Lyndale?
Isn’t it time Cllr Phil Davies remembered his 2009 U-turn on closure of Ridgeway and did the same now on Lyndale?
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
Last year, Wirral Council wanted to introduce a banding system for the extra costs at special schools. However at the last-minute they withdraw their application to the Secretary of State to do this.
Despite the fact it actually couldn’t be implemented in 2013-14, the policy was agreed by a close 8:7 vote at a call in meeting back in February 2014, so if it gets implemented next year for band 5 children at Wirral Schools the top up element for band 5 children is capped at £16,000 (this is in addition to the £10,000 each school receives per a child).
If however a child with special needs based on the Wirral is at a school outside Wirral or at an independent special school (such as West Kirby Residential School) on the Wirral this £16,000 upper limit at least by my reading of the policy doesn’t apply.
When questioned at the Coordinating Committee meeting on October 2nd 2014 and asked to explain this unfairness, David Armstrong (Assistant Chief Executive) explained that because independent schools are run as a business, Wirral Council pay more to independent schools because such businesses are run to make a profit.
I used to go to an independent school, called St. Anselm’s College. Between the ages of 12 and 14 the school complained bitterly at people like myself whose places were funded by Wirral Council because we were all told many times that the school got (if memory serves me correct nearly 20 years later so I may be a little rusty on the figure) £100 per a term less than this was actually costing them and this meant in effect they had to cross subsidise the education of people like myself by putting fees up. Across about 35 pupils, this was a deficit of about £10,000 a year at 1992 prices.
The school felt (or maybe influential parents on the board of governors felt) it was unfair to expect the well off parents to subsidise the education of other students and they chose to opt out of the local system becoming grant maintained in the mid 1990s (as grant maintained schools no longer exist it is now called an academy).
In other words even when I was actually a child in the Wirral education system (and too young to vote), I was being made aware of how angry (and let’s face it political) schools got at Wirral Council’s funding formula a whole two decades ago! This may sound awful to write like this but to a lot of large schools, each child at the school meant £x,xxx a year, which meant management trying to balance the books each year veered towards seeing children as a source of income and forgot that people prefer to be treated as people and not a line on a balance sheet. Each year children got old enough to leave, so there was the usual advertising in the local newspapers and open evenings each year to try and persuade parents to pick that particular school for their children.
That is the mistake that I sadly feel politicians and upper management at Wirral Council have made. It is very easy to just see Lyndale School as a line on a balance sheet and that there’s an underspend in the budget for closing schools and try and spend that budget. The debate has sadly got too much about money and dare I write the unthinkable “nobody really understands the full complexities of education funding anyway”?
It’s harder to look at the social fabric of what makes up a school, not just the staff and children at it but its place in the community. To give one example of this there’s the history of a school and the fond place in the hearts of people who no longer have children there but did at one stage. These are not factors that can never truly be measured by accountants at Wirral Council. Unlike other consultations, the consultation responses made to the Lyndale School closure weren’t published by Wirral Council, although you can read them as an exclusive on this blog.
In the recent past there was a move to close Ridgeway High School (a secondary school) here in Birkenhead. Ridgeway was the controversial political issue back then (I even remember speaking on TV about it), there was a large petition of thousands against closure handed in to Wirral Council and a call in meeting held in the Council Chamber which a lot of people associated with the school attended. It was controversial, but in the end in 2009 the Labour/Lib Dem Cabinet did a U-turn and Rock Ferry closed instead. The rest as they say is history.
Back then Cllr Phil Davies was the Cabinet Member for Education and was quoted as saying this about that U-turn in the Liverpool Echo, he said that it was a “pragmatic decision, based on the clear view from Ridgeway that they do not want to be part of these options” and “We are not going to force the school to close and be part of a review which they now no longer wish to be involved in.”
In the interests of balance I will point out the same article has a quote from Cllr Stuart Kelly saying he is “delighted” and this quote from Cllr Jeff Green “The Cabinet really must start thinking things through before making such critical decision on the future for Wirral residents. The anguish and alarm the decision to close Ridgeway created was wholly avoidable by a simple application of common sense, it would also have prevented this subsequent embarrassing climb down.”
Now, five years later when somebody else is Cabinet Member for Education (Cllr Tony Smith) and Cllr Phil Davies is Leader of the Council where have those fine principles of pragmatism that Cllr Phil Davies displayed back in 2009 gone? Where is the politician’s desire to actually represent the views of thousands of people that signed a petition against closure of Lyndale? Try replacing Ridgeway in those quotes with Lyndale and you will get the following two quotes (the kind of words I’m sure plenty of people wish Cllr Phil Davies would actually say):
Cllr Phil Davies that it was a “pragmatic decision, based on the clear view from Lyndale that they do not want to be part of these options” and “We are not going to force the school to close and be part of a review which they now no longer wish to be involved in.”
and Cllr Jeff Green “The Cabinet really must start thinking things through before making such critical decision on the future for Wirral residents. The anguish and alarm the decision to close Lyndale created was wholly avoidable by a simple application of common sense, it would also have prevented this subsequent embarrassing climb down.”
Certainly if those words were said today (and for the sake of everyone involved in this let’s hope something similar is said in the near future!), Cllr Jeff Green’s position would seem to be entirely consistent over time if you compare Ridgeway in 2009 to now. Ridgeway of course is and was back then a much larger school that Lyndale is, so therefore had the clout back then and political influence to make sure it was never closed.
Why does the Cllr Phil Davies of 2014 over Lyndale not display the same sense of pragmatism he showed over Ridgeway in 2009? What’s happened in the last five years? I know U-turns are embarrassing for politicians to make, but he should take a really long, hard look at one of his predecessors as Leader of the Council Cllr Steve Foulkes who refused to U-turn on library closures until the Minister launched a public inquiry and learn the lesson that that it can be disastrous for the Labour Group’s reputation to rely on the “professional” advice of Wirral Council officers and listen to those Wirral Council officers more than the views of many Wirral residents. Aren’t politicians supposed to be there to represent the public in the political process?
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1) How many pupils go to the school and how many teachers and other staff are there at present?
Wirral Council state that there are now 21 pupils on the roll at Lyndale School (as of yesterday 30th September 2014). However it is noted that a number of these will reach secondary school age next year and will not be directly affected by the proposed closure in January 2016.
According to the Lyndale School website there are 19 teaching assistants and 3 teachers at the school. However this information might be out of date. It is possible there are other staff too that are not listed on its website. However only The Lyndale School could answer the actual current number about how many teachers and other staff are now employed on this particular day as this number fluctuates. My own guess is that the total number of staff is somewhere between twenty-two and thirty-five (I am assuming you are referring in your question to paid staff and not volunteers).
2) How many different schools are likely to be used for the transfer of the children if the school is closed and would the attention they receive now be diminished in another environment?
Stanley School and Elleray Park have already been named as alternative schools so at least two, however some parents have said they will not send their children to either of those schools if Lyndale School closes. So the number of different schools if it was closed that the children at Lyndale School would go to is likely to be a number between three and six. In theory it could be as high as twelve, but that’s highly unlikely.
In answer to the second part of your question, if the school was closed and the pupils were transferred to either Elleray Park or Stanley School, then Wirral Council plans to spend less money on a per pupil basis than Lyndale currently receives. Currently Lyndale School receives on average ~£33,000 per pupil, this would drop to between ~£17,000 per a pupil to ~£26,000 per a pupil depending on which one of five new bands that particular former Lyndale School pupil is assessed in based partly on their EHCP (Education, Health and Care Plan).
However if Lyndale School shut and the former Lyndale pupil/s was transferred to an independent special school, the amount received per a pupil would be uncapped. If the former Lyndale School pupil went to a special school outside of Wirral (bear in mind Lyndale School is in Eastham very close to the edge of Wirral so it is a possibility parent/s would choose placements outside of Wirral) the amount would also be uncapped based on the current policy.
This is because Wirral Council’s current policy is to not have a cap on funding for independent special or out of borough special placements, but they intend to introduce a cap for special pupils in schools on the Wirral Borough from next year assuming they get agreement to this from the various decision-making bodies.
This reduction in funding will probably lead both to less staff time available per a child and/or a reduction in other costs that the school has. That is the view of the parents, some councillors, staff and other people replying to the consultation. However Wirral Council takes a different view on this point.
I do not think it is realistic to state that education would remain the same as they receive at Lyndale School although Wirral Council would disagree with me on that point.
3) Would all children find places nearer or further away from home as at present and would transport be provided for them to go and come back from school each day?
The first part of that answer is impossible to answer until a final decision over closure is made and a parental choice is made about alternative schools. However I remember one parent stating that they moved house so that they could be nearer to Lyndale School, therefore in some cases the places would be further away from their home.
SEN Transport can be provided for pupils to go and come back from school, however some parents choose to take their children to school themselves. If your question is would SEN Transport be provided at the new schools as a choice, then the answer if yes if it was requested. However SEN Transport is not compulsory and results in a cost to Wirral Council.
4) What would happen to the present teachers and other staff if the school was closed?
They would lose their jobs, that is to say they would be made redundant as the school had closed. It would then be down to the individual members of staff to apply for jobs elsewhere if they so wished to do so at that stage.
It is to be noted that Wirral Council made an error in the consultation document in relation to what would happen to the staff if the Lyndale School closed.
Despite how the unimplemented Cabinet resolution of 4th September 2014 is phrased, no jobs are guaranteed. Any decision over employing former Lyndale staff elsewhere would be up to that school’s governing body, the usual legal processes such as filling out application forms, criminal record background checks, interviews etc and the former Lyndale staff would be in a competitive process with other applicants for any new jobs created at other schools.
Due to the funding reduction, even if all the former Lyndale School staff applied for jobs at the places where the former Lyndale School pupils had been moved to, the funding reductions would mean that there would be a reduction in posts compared to current staffing levels at Lyndale School.
5) Would the real saving come from the sale of the Lyndale premises and site?
(a) it was declared surplus to requirements (a decision that would have to be made by Wirral Council)
(b) a buyer was found
(c) there are other decisions that would have to be made by bodies outside Wirral Council in relation to the land and buildings before a sale could proceed as it is a school. It is unknown whether such bodies would agree to it or not. For example multiple approvals would be needed from the government in relation to the land and buildings before any changes such as a sale or change of use were made.
(d) in order to change its use planning permission would be required (a decision that would have to be made by Wirral Council)
It is to be noted at this stage that the Land Registry entry for Lyndale School refers to a conveyance agreement (if memory serves correct 1952) between Cheshire County Council, a limited company and an individual. I note that prior to the creation of Wirral Council in 1974, this piece of land was in the Cheshire County Council area. Although Cheshire County Council was abolished in 2009, in 2009 its functions were transferred to Cheshire West and Chester and Cheshire East.
I do not currently have access to a copy of this document, which is lodged with Land Registry, Birkenhead. Due to public service cutbacks I have to wait for an appointment with Land Registry in order to view and request a copy of it although either Chester West and Chester or Cheshire East should have a copy when the Cheshire County Council records were transferred.
I have given as full an answer as I can to the above questions, considering that some of the detail is either not known to me, would take too long to collate or would result in me having to make enquiries of others.
There will be a public meeting of Wirral Council’s Coordinating Committee on 2nd October 2014 starting at 6.00pm in Committee Room 1 at Wallasey Town Hall to discuss the recent Cabinet decision and decide what to do next.
At the moment implementation of the decision has been put on hold pending the outcome of that meeting.
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A letter to Wirral Council about the 29 ways they allegedly got the Lyndale School decision wrong
A letter to Wirral Council about the 29 ways they allegedly got the Lyndale School decision wrong
Councillor Tony Smith (Cabinet Member for Children and Family Services) at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School L to R Cllr Stuart Whittingham, Cllr Tony Smith (Cabinet Member for Children and Family Services), Cllr Bernie Mooney and Lyndzay Roberts
Below is a copy of a letter emailed to Wirral Council’s Surjit Tour, the nine councillors on the Cabinet that took the “decision” and Julia Hassall.
Jenmaleo,
134 Boundary Road,
Bidston
Wirral
CH43 7PH
Wirral Council
Metropolitan Borough of Wirral
Wallasey Town Hall,
Brighton Street,
Wallasey,
Merseyside,
CH44 8ED,
England
8th September 2014
By email
Surjit Tour surjittour@wirral.gov.uk
Cllr Phil Davies phildavies@wirral.gov.uk
Cllr Tony Smith tonysmith@wirral.gov.uk
Cllr Bernie Mooney berniemooney@wirral.gov.uk
Cllr Stuart Whittingham stuartwhittingham@wirral.gov.uk
Cllr Chris Meaden chrismeaden@wirral.gov.uk
Cllr Chris Jones christinejones@wirral.gov.uk
Cllr Adrian Jones adrianjones@wirral.gov.uk
Cllr George Davies georgedavies@wirral.gov.uk
Cllr Pat Hackett pathackett@wirral.gov.uk
Julia Hassall juliahassall@wirral.gov.uk
LETTER BEFORE CLAIM
Proposed claim for judicial review
1. TO
SURJIT TOUR
Legal and Member Services
Metropolitan Borough of Wirral
Wallasey Town Hall,
Brighton Street,
Wallasey,
Merseyside,
CH44 8ED,
England
2. The claimant
MR JOHN BRACE
Jenmaleo,
134 Boundary Road,
Bidston,
CH43 7PH
3. Reference details
Amended Cabinet recommendation of 4th September 2014 with respect to Lyndale School (agenda items 4&5)
4. The details of the matter being challenged
What is being challenged is the decision of Wirral Council’s Cabinet on the evening of the 4th September 2014 to make the amended recommendation which is copied below. More specifically the details of the matter being challenged are 1.1, 1.2, 1.3, 2.0 and 2.1 of the recommendation.
“CABINET – 4TH SEPTEMBER 2014
THE LYNDALE SCHOOL
RECOMMENDATION
1.1 Cabinet thanks all those who have participated in the consultation exercise, with particular regard to submissions from parents of children at The Lyndale School.
1.2 Having reviewed the responses received during the consultation process, analysed the alternative options and applied the SEN Improvement Test, is it recommended that:
Statutory notices be published in respect of the closure of The Lyndale School from January 2016.
That Wirral Council, under the leadership of the Director of Children’s Services, work individually, with children and families, towards effecting a smooth and supportive transition to an alternative place at one of the following schools:
Elleray Park Special School
Stanley Special School
Another appropriate school
In doing so, that the Director of Children’s Services, in acknowledgement of the close relationships that exist between staff and pupils at The Lyndale School, investigates if staff could be employed, where possible, at receiving schools, (subject to legal practice and the approval of governing bodies).
The Director of Children’s Services be authorised to take all necessary steps to publish the proposals and ensure the prescribed procedures are followed, including requesting permissions from the Secretary of State, in furtherance of the proposals.
A further report be brought on the outcome of the publication of the statutory notices.
1.3 That the Director of Children’s Services to ensure that Education, Health and Care Plans for all pupils of the Lyndale School are completed by the 31st October.
2.0 REASONS FOR RECOMMENDATION
2.1 Having looked at all the options, and applied the SEN Improvement Test, it is our opinion that, while we recognise the special place that The Lyndale School has in the affection of parents and children, the continued operation and maintenance of a school of this size will not meet the future educational needs of the children, nor is a financially viable option, especially when there are good alternative options available.
The Council has a responsibility to ensure for the sustainable future provision of education for the pupils of The Lyndale School. In addition, we have to manage resources effectively for all schools and the school population.
This has been a difficult decision to make, and we would like to affirm our continued intention to work positively with the families and the children affected, and reassure parents of our continued commitment to their child’s wellbeing and education.”
5
The issue
Brief summary of facts:
Wirral Council’s Cabinet made a key decision on the evening of 4th September 2014 at a public meeting to proceed to a second round of consultation on the closure of the Lyndale School. The recommendation agreed by nine councillors is outlined above.
Why it is contended to be wrong:
It is contended to be wrong because:
(a) The notice requirements before the meeting were not met.
The actions specified to be taken in advance of the Cabinet meeting in the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 specifically Regulations 9-11 weren’t met. More specifically the document specified in Regulation 9 wasn’t published 28 days before the meeting or the notice in Regulation 10(3)(b) or the notice in Regulation 11(2)(b).
Regulation 9(1) makes it quite clear that if these requirements are not met that “that decision must not be made)
(b) The key decision was made by the wrong people.
In addition to the Cabinet between four and nine other people should’ve been included in the decision. Specifically these are:
between 2-5 parent governor representatives,
a representative of the Catholic diocese and
a representative of the Anglican diocese
These people should have all had voting/speaking rights and been invited to take part in the Cabinet meeting.
Normally Cabinet would not be required to have such representatives on it as it has oversight by the Families and Wellbeing Policy and Performance Committee and Coordinating Committee.
However as a representative of the Anglican diocese has not yet been appointed to the Families and Wellbeing Policy and Performance Committee or the Coordinating Committee due to this lack of oversight the Cabinet was required to have them take part in the decision making on this matter.
This legal requirement is outlined in the School Standards and Framework Act 1998 c.31/ s.499 of the Education Act 1996 c.56 and the underlying regulations such as Regulation 5 of the Local Authorities (Committee System) (England) Regulations 2012 and regulation 5 of The Education (School Organisation Committees) (England) Regulations 1999 and other underlying regulations.
(c) Human Rights issues
Wirral Council have to make decisions that are compatible with the Convention Rights (s.6(1) Human Rights Act 1998 c.42). Specifically these concerns are about Protocol 1 (Article 2), article 2, article 3, article 11 and article 14.
The concerns are briefly outlined below:
Protocol 1 (Article 2) “right to education” as closure of the school would interfere with the parent’s right to “ensure such education and teaching in conformity with their religious and philosophical convictions”
Article 2 “right to life” as closure of the school would possibly cause the death of one or more of its current pupils
Article 3 “prohibition of torture” as closure of the school would be “degrading treatment or punishment” of the parents and pupils
Article 11 “freedom of assembly and association” as closure of the school would interfere with the rights of the pupils, staff and parents to associate with each other and none of the requirements in 11(2) are known to be met
Article 14 “prohibition of discrimination” as:
(a) the school is for severely disabled children therefore closing (whilst not making known closures elsewhere) could be classed as discrimination
(b) the political views of the parents are that the school should not close which has been widely expressed in the media prior to the meeting in opposition to the stated views of the Labour administration at Wirral Council
(c) many of the severely disabled children at the school were born that way
(d) Equality Act 2010 c.15 considerations
Section 13 – the Lyndale pupils (person B) have a protected characteristic (disability). They would be treated less favourably if the school closed as less money would be spent on their education. Furthermore many of the approximately thirty staff have protected characteristics (who will be out of a job if the school closes)
Section 15 – this relates to discrimination arising from disability. The pupils at the school are disabled. Wirral Council would have to show that the treatment is “a proportionate means of achieving a legitimate aim” which has not yet been demonstrated
Section 19 – this relates to indirect discrimination of the parents and family members of the Lyndale pupils
Section 26 – “harrasment”, the closure plans have resulted in a violation of dignity of those with protected characteristics and have intimidated staff, parents and pupils at the school. One example of this would be that the headteacher has left.
Section 27 – the parents have threatened legal action which is a protected act
Section 85 – these plans force the Lyndale School to breach s.85(2)(f) as it subjects pupils and their parents to detriment
Section 86 – this relates to victimisation of the pupils for the conduct of their parents. The parents have petitioned, campaigned and lobbied against closure. The siblings and parents of the children at the Lyndale School are being penalised for this
Section 112 – the way Wirral Council behaved (for example making a false public statement that if the school was closed that staff would be redeployed during the consultation) is aiding contraventions of the Equality Act 2010
Section 149 – “public sector equality duty” Due regard to 149(a), (b) and (c) by Wirral Council has not been given. The same goes for the duties under 149(5)(a) and 149(5)(b). These relate to the proteted characterists of pupils, staff and parents at the school.
Section 150 – “public authorities and public functions” – the Metropolitan Borough of Wirral Council is a “district council” in England as defined in Schedule 19, therefore 150(3), 150(4) and 150(5) apply to it.
Section 158 – “positive action: general” the pupils of Lyndale school have needs that are different from the needs of person that are not disabled. Those that have PMLD (which is a protected characteristic) are a disproportinately low proportion of the school population. The Lyndale pupils are at this school because it’s a special school that caters for the needs of disabled pupils with PMLD. Therefore they will suffer a disadvantage if the school closes. The level of education they receive will change if the school closes and it is alleged that this new provision will not meet their needs.
Section 19 – Wirral Council provides the service of education to the disabled pupils at the Lyndale School. If the school is closed the current (and potential future) disabled pupils would find it “impossible” or “unreasonably difficult” to use the school. Although Wirral Council is a “local education authority in England” and therefore a “relevant body” as defined in s.19(6), it remains to be seen whether education & transport are services that fall under s.19(5)(a) or not.
Section 21 – The adjustment required would be to fund the running costs of the Lyndale School, whilst it is appreciated that Wirral Council is a “local education authority in England” and therefore a “relevant body”, this duty of providers of services to make adjustments could/could not apply to Wirral Council
Section 21B – Wirral Council is a “public authority” and is discriminating against disabled people in carrying out its functions.
Section 21D – Wirral Council is failing in its general duties to:
(1)(a) the need to eliminate discrimination that is unlawful
(1)(b) the need to eliminate harrassment of disabled persons that is related to their disabilities
(1)(c) the need to promote equality of opportunity between disabled persons and other persons
(1)(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons
(1)(e) the need to promote positive attitudes towards disabled persons
(1)(f) the need to encourage participation by disabled persons in public life
Section 28A – “Discrimination against disabled pupils and prospective pupils” This relations to 28A(2) and 28A(1)(a) as Wirral Council is “the local education authority” defined in Schedule 4A. Wirral Council is proposing altering its admission arrangements which discriminate against the current disabled pupils at the Lyndale School. Closure would result in the current pupils being excluded permanently.
Section 28B – Lyndale pupils are being treated less favourably because of reasons realted to their disability/ies. It is unreasonable to assume that Wirral Council does not know they are disabled as it is a special school
Section 28C – “disabled pupils not to be substantially disadvantaged” The Lyndale pupils are being put at a substansial disadvantage compared to persons who are not disabled with regards to the admission arrangemnts.
Section 28F – There has been a failure of the duty of the education authority not to discriminate, it is unknown at this stage what prescribed function this relates to (if any).
Section 49A – In carrying out its functions, Wirral Council is not having due regard to
(1)(a) the need to eliminate discrimination that is unlawful
(1)(b) the need to eliminate harrassment of disabled persons that is related to their disabilities
(1)(c) the need to promote equality of opportunity between disabled persons and other persons
(1)(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons
(1)(e) the need to promote positive attitudes towards disabled persons
(1)(f) the need to encourage participation by disabled persons in public life
Section 2 – This section inserted 21B in the Disability Discrimination Act 2005 (see arguments above for s.21B of the Disability Discrimination Act 2005)
Section 3 – This section inserted 49A in the Disability Discrimination Act 2005 (see arguments above for s.49A of the Disability Discrimination Act 2005)
(g) statutory guidance
Statutory guidance has been issued which includes the application of a test to such proposals known as the “SEN Improvement Test” to such decisions. Wirral Council claims that its plans for closure meet the SEN Improvement Test. The Claimant disagrees that the requirements of the SEN Improvement Test have been met to the preferred option (which is closure of the Lyndale School). This is because:
(i) it would not lead to improved access to education and associated services
(ii) it would not lead to improved access to specialist staff
(iii) it would not lead to improved access to suitable accommodation
(iv) it would not lead to an improved supply of suitable places
(v) there seems little clarity that the host schools mentioned in the decision (Elleray Park and Stanley School) are willing to receive pupils with communication and interaction needs
(vi) there is confusion as to how the proposals will be funded and the planned staffing arrangements that will be put in place
(Set out the date and details of the decision, or act or omission being challenged, a brief summary of the facts and why it is contented to be wrong)
6
The details of the action that the defendant is expected to take are:
(a) to make a written undertaking not implement the decision as an interim measure until a new Cabinet meeting happens,
(b) hold a further meeting of the Cabinet to make a decision that complies with:
(i) the notice requirements for the meeting (SI 2012/2089 Regulations 9-11) and
(ii) the other legal issues addressed in this letter
(c) to carry out a review of the matters raised in this letter and inform the Claimant of the outcome of that review
(d) to inform the Claimant if the decision is implemented and if so from what date
(e) to respond to this letter before the proposed reply date in section 12
(f) meet with Mr. John Brace before the proposed reply date so that these issues can be explored in depth in the hope that litigation can be avoided.
7
The details of the legal advisers, if any, dealing with this claim
N/A
8
The details of any interested parties
Cllr Phil Davies phildavies@wirral.gov.uk
Cllr Tony Smith tonysmith@wirral.gov.uk
Cllr Bernie Mooney berniemooney@wirral.gov.uk
Cllr Stuart Whittingham stuartwhittingham@wirral.gov.uk
Cllr Chris Meaden chrismeaden@wirral.gov.uk
Cllr Chris Jones christinejones@wirral.gov.uk
Cllr Adrian Jones adrianjones@wirral.gov.uk
Cllr George Davies georgedavies@wirral.gov.uk
Cllr Pat Hackett pathackett@wirral.gov.uk
Julia Hassall juliahassall@wirral.gov.uk
9
The details of any information sought
Details of information sought:
(a) a request for a fuller explanation of the reasons for the decision being challenged beyond those that form a part of the recommendation at 2.1
(b) statistical information on staff at the Lyndale School with reference to all protected characteristics
(c) statistical information on Wirral Council’s workforce with reference to all protected characteristics
(d) statistical information on current pupils at the Lyndale School with reference to all protected characteristics
(e) three year projected financial information about the Lyndale School projected budgets supplied to Wirral Council by the Lyndale School governors including total projected expenditure, total projected costs and total projected income
(f) earlier drafts of report titled “Report detailing the outcome of the consultation on the closure of the Lyndale School”
(g) earlier drafts of the report at Appendix 1 titled “The Independent Consultant’s Report”
10
The details of any documents that are considered relevant and necessary
(a) The consultation responses. These are considered necessary as they are referred to in 1.1 and 1.2 of the decision. Although I have already published some, I am unsure whether it is a complete set of consultation responses.
(b) Those documents outlined in section (9) specifically (e) to (g) (financial information and earlier drafts of reports)
(h) details of consultation with staff and relevant trade unions
(i) details of consultation with the governing body at Lyndale School
(j) Principal Educational Psychologist’s report
(k) detail as to how Wirral Council think the preferred option of closure meets the “SEN Improvement Test”
11
The address for reply and service of court documents
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
12
Proposed reply date
24th September 2014
Yours sincerely,
John Brace
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