Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner's Office

Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office

Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office

                                               

Last year, during the 2013/14 audit I requested various information on various payments Wirral Council has made to legal firms. One of these was an invoice for £700 for conveyancing done by DLA Piper UK LLP (a copy of which is below).

Wirral Council invoice DLA Piper UK LLP conveyance £700 7th August 2013
Wirral Council invoice DLA Piper UK LLP conveyance £700 7th August 2013

As you can see above it’s for a BACS payment (although the payments over £500 list this as a CHAPS payment) for £700, split into £200 for a contribution towards sewers (although the rest of what the £200 is for can’t be made out due to bad handwriting) and £500 to do with the purchase of the freehold title.

If you look at the image above you’ll find the address of the property is blacked out. Section 15 of the Audit Commission Act 1998 allow Wirral Council to redact information if it relates to a member of their staff (or payments or other benefits made to their staff connected with their employment) or to withhold personal information if the external auditor agrees to it.

However their auditor has confirmed that there were no such requests. Wirral Council also rely on the decision in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council & Ors [2010] EWCA Civ 1214 in blacking out information that falls into the meaning of “commercial confidentiality”.

So going back to the PR1 form above I wanted to know what the address that this £700 for conveyancing spent by Wirral Council was, so back on the 26th January 2015 I asked using the Freedom of Information Act for the address.

By the 24th February 2015, having received no reply to my request of the 26th January 2015 within the 20 days Wirral Council have to respond to FOI requests, I requested an internal review because of the lack of response.

On the 23rd March 2015, a Rosemary Lyon who is a solicitor working at Wirral Council replied to my request for an internal review. She regarded the request as one that fell within the Environmental Information Regulations 2004, so considered it as a representation under regulation 11.

She then went on to refuse the request using an exception in Regulation 12(5)(e) which states:

“the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;”

The reasons she gave for refusing the request were:                                    

“in that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. I have had regard to the guidance issued by the Information Commissioner’s Office, “Confidentiality of commercial or industrial information (regulation 12 (5) (e) Version 1.2. I consider that the following applies to the requested information in the context of the other information included in the payment requisition fund:-

  • The information is commercial or industrial in nature
  • Confidentiality is provided by law
  • The confidentiality is protecting a legitimate economic interest
  • The confidentiality would be adversely affected by disclosure.

I consider that the information relates to the commercial activity of a third party. I also consider that confidentiality is provided by law in that it is imposed on the Council as a public authority by the common law of confidence and contractual obligation. I consider that the confidentiality is protecting a legitimate economic interest. The First Tier Tribunal (Information Rights) confirmed in Elmbridge Borough Council v. Information Commissioner and Gladedale Group Ltd (EA/2010/0106, 4 January 2011) that to satisfy this element of the test, disclosure of the confidential information would have to adversely affect a legitimate economic interest of the person the confidentiality is designed to protect. I consider that disclosure of the requested information would adversely affect the legitimate economic interest of the third party and also that of the Council.

This exception is subject to the public interest test.

Public interest factors in favour of disclosure

  • Promotion of transparency and accountability of public authorities

Public interest factors in maintaining the exception

  • Disclosure would adversely affect the legitimate economic interest of a third party and interfere with commercial bargaining in the context of existing or future negotiations
  • Disclosure of the requested information would also affect the bargaining position of the Council with third parties.

I consider that in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. I am therefore refusing your request for information on the basis that the exception contained in Regulation 12 (5) (e) of the EIR applies.”

On the 25th March 2015 I appealed Wirral Council’s refusal to the Information Commissioner’s Office.

Today Wirral Council reversed their position and stated:

“Following your complaint to the Information Commissioner’s Office, the Council has decided to reverse its position, having previously relied on the exception contained in Regulation 12 (5) (e) of the Environmental Information Regulations 2004. I do not consider that releasing the information would now adversely affect the legitimate economic interest of a third party. The address of the property, which you have requested is 13 Thorneycroft Street, Birkenhead. I have copied this response to the Information Commissioner’s Office.”

Now I know the address is 13 Thorneycroft Street, Birkenhead, I know what this payment for conveyancing is for. The properties in this road as far as I remember had been demolished by the date that this payment to DLA Piper UK LLP for conveyancing happened in August 2013.

In August 2013, Keepmoat were granted planning permission for 125 new houses here and have since built them and sold them on. In fact 13 Thorneycroft Street, Birkenhead doesn’t exist any more, it’s either part of the public open space at the back of the Laird Street Baptist Church or an off-street car parking space for one of the new properties.

So what was the “legitimate interest of a third party” that Wirral Council claimed it was protecting by not supplying the address? How on earth does giving this address interfere with Wirral Council’s “commercial bargaining in the context of existing or future negotiations”?

Unlike the Freedom of Information legislation, regulation 12(2) of the Environmental Information Regulations 2004 state:

A public authority shall apply a presumption in favour of disclosure.
Wirral Council invoice DLA Piper UK LLP conveyance 7th August 2013 address added
Wirral Council invoice DLA Piper UK LLP conveyance 7th August 2013 address added

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Incredible: Cllr Jones answers that councillors are "trusted" to exercise their judgement over when to use taxis

Incredible: Cllr Jones answers that councillors are “trusted” to exercise their judgement over when to use taxis

Incredible: Cllr Jones answers that councillors are “trusted” to exercise their judgement over when to use taxis

                                                                  

Hackney carriage by Ed g2s
Hackney carriage by Ed g2s

Hackney carriage by ed g2stalkOwn work. Licensed under CC BY-SA 3.0 via Wikimedia Commons

On Monday I wrote Was there no available public transport when Wirral Council councillors took taxis?.

On Monday evening I asked Councillor Adrian Jones about councillor’s use of taxis during the public question time section of Council meeting. Below is a transcript of the answer he gave to my question (apart from one small section that is unclear) along with a transcript of my supplementary question and answer.

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JOHN BRACE: Thanks, as you said my question is to Councillor Jones.

Each year Wirral Council is required to publish annual totals of what councillors have claimed in travel expenses. Due to contracts with various taxi firms invoicing Wirral Council directly thousands of pounds of expenses weren’t included in the list for 2013/14.

The Members Allowance Scheme states that the use of taxis (or councillors’ own cars) for attending meetings is only permitted where public transport is either not available, or the journey by public transport would be likely to result in unreasonable delay.

For the taxi journeys made by councillors that were not included in the annual published lists for 2013/14 and those made since can you confirm:

(a) each journey was taken where there is no available public transport (or taking public transport would lead to unreasonable delay) and if not will councillors involved be refunding Wirral Council and

(b) what changes will be made so that the expenses for such journeys made in 2014/15 will be included next time the annual lists are published? Thank you.

CLLR ADRIAN JONES (CABINET MEMBER FOR SUPPORT SERVICES): Thank you for your question John.

The Council’s Members Allowance Scheme is detailed in part six of the constitution and paragraph 8(a) deals with travel costs but I’m sure you already know that.

The roles and personal circumstances of Members varies widely as do demands and expectations of their constituents and this has to be followed by considering which journey for Wirral that Members do.

Some Members for various reasons have no reason to use taxis in order to carry out some of their duties. It’s the responsibility of those Members concerned to determine when to use a taxi and in doing so Members are trusted to make a judgement that is consistent with the Members Allowances Scheme.

Members in exercising that judgement will take account of a number of factors such as the public transport arrangements available at the time in question, including the frequency of service, the length of time between connections and the consequent time it’ll take to get to and from their destination.

This is also balanced against other factors including personal and family circumstances, other conflicting commitments including a Member’s employment, other engagements and appointments to be attended that day and also for safety issues, health and safety issues that may arise at a particular time such as late night travel and …

The Council has negotiated competitive prices and entered into contracts with a local taxi company to provide transport for Members in accordance with the Members Allowances Scheme. The taxi company submits its invoices and the details of the Members that used the taxis each month directly to the Council for payment. The advantage of this arrangement is that the cost of transport by taxis is always at the negotiated rate and is a more efficient way to manage the service.

Now these costs have not been published on that basis previously, however in future the cost of Member’s taxi journeys undertaken pertinent to these taxi contracts will be published on the Council’s website as soon as practicable after the end of each financial year.

I will just add John that I’ve no doubt in targeting your question to the use of taxis you may be thought to have missed the big picture as the use of private cars is also charged to the public purse and that’s a point that will go over on both sides of the room.

Various councillors: Hear, hear.

Mayor: Do we, are we allowing the press a supplementary? You want a supplementary? OK.

JOHN BRACE: Thank you for that answer Councillor Jones.

The information about taxi journeys made by some councillors was provided to me on the 23rd January 2015 in response to a Freedom of Information Act request.

Since that time I have made four further FOI requests that have not been answered at all within the statutory twenty days, there are a further six that have not been responded to and only this morning I received an email from the Information Commissioners Office that said they would be drafting a decision notice about the Council’s failure to respond to an internal review request that was made on the 12th of November last year.

Will he apologise tonight for the way that this Council is ignoring my requests made under the Freedom of Information legislation and send me a written answer before the elections in May as to what is happening to improve Wirral Council’s performance when requests for information are made using the Freedom of Information Act legislation?

CLLR ADRIAN JONES: I’ll ask for a report as on why your question wasn’t answered and I’ll get back to you soon.

JOHN BRACE: Thank you.

——————————————————————————————————-

In answer to Councillor Jones’ point about use of councillor’s own cars to attend meetings being part of the bigger picture I refer him (and readers) to the fact I published all these (for 2013/14) last year:

Here are some links:

Expense claim forms for Councillor David Elderton (Wirral Council) 2013 to 2014
Expense claim forms for Councillor Phil Davies (Wirral Council) 2013 to 2014
Expense claim forms for Councillor George Davies (Wirral Council) 2013 to 2014
Expense claim forms for Councillor Mike Hornby (Wirral Council) 2013 to 2014
Expense claim forms for Councillor Andrew Hodson (Wirral Council) 2013 to 2014
Expense claim forms for Councillor Sylvia Hodrien 2013
Expense claim forms for Councillor John Hale (Wirral Council) 2013 to 2014
Expense claim forms for Councillor Ann McLachlan 2013 to 2014
Expense claim forms for Councillor Brian Kenny (Wirral Council) 2013 to 2014
Expense claim forms for Councillor Stuart Kelly (Wirral Council) 2013 to 2014
Expense claim forms for Councillor Cherry Povall, JP 2013 to 2014
Expense claim forms for Councillor Moira McLaughlin 2013 to 2014
Expense claim forms for Councillor Tony Smith 2013 to 2014 reveal mysterious Lyndale School meeting in February 2013
Expense claim forms for Councillor Harry Smith 2013 to 2014
Expense claim forms for Councillor John Salter 2013 to 2014
Expense claim forms for Councillor Pat Williams 2013 to 2014
Expense claim form for Councillor Phil Davies (Wirral Council) 2013 (continued) £241.10 claimed in 1 week!
Expense claim forms for Councillor George Davies (Wirral Council) 2013 (continued)
The 6 “missing” pages of Cllr Tony Smith’s expenses claims shed more light on Lyndale School matters
Expense claim form for Councillor David Elderton (Wirral Council) October 2013
11 more pages of Wirral Council councillors’ mileage claims (Elderton, Hornby, Kelly, Povall, Salter, H Smith and P Williams)

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Incredible: 1 of many responses to the Lyndale School consultation that Wirral Council refuse to release

Incredible: 1 of many responses to the Lyndale School consultation that Wirral Council refuse to release

Incredible: 1 of many responses to the Lyndale School consultation that Wirral Council refuse to release

                      

Labour councillors at a public meeting of Wirral Council's Coordinating Committee voting to consult on closing Lyndale School (27th February 2014)
Labour councillors at a public meeting of Wirral Council’s Coordinating Committee voting to consult on closing Lyndale School (27th February 2014)

Rather predictably, Wirral Council turned down my Freedom of Information Act request for the responses to the consultation on the closure of Lyndale School yesterday, on the basis that they would be publishing them as part of the Cabinet papers for the special meeting on the 4th September. Rather worryingly they stated in their response “Wirral Council can confirm that the requested information will be made available and published during September 2014”, however a legal requirement requires them to publish such reports at least “five clear days” before the meeting meaning the latest the responses should be published is the 27th August.

Applying the “public interest test” to this Freedom of Information Act request, they go on to state “the Council believes that all the information/responses for the consultation require collating and then they are published as a complete article. The Council does not want to release partial information at this time and
then have to amend its response.”

They’ve also not answered my question about how many responses there were to the consultation. I previously published, on the 14th July the Parents’ Response to Wirral Council Consultation Document on the Closure of The Lyndale School which in print form (at least on my computer anyway) runs to fifty-three pages.

Although councillors were sent it before the debate on Lyndale School at the last full Council meeting on the 14th July, I remember during that meeting, the Mayor Cllr Foulkes stating that he’d only received it on the Saturday before the meeting (which was on Monday evening) so how could he be expected to have time to read it before the meeting (or words to that effect)? Similar reasons were also given by councillors last week on the Audit and Risk Management Committee over the amount of time to read a late 526 page supplementary agenda.

So, despite the fact that Wirral Council don’t seem to want the consultation responses to be published until around a week before the special Cabinet meeting (perhaps because all the responses will be hundreds of pages) here is a another consultation response from a married couple of a child at Stanley School. If Lyndale School closes, Stanley School is one of the two schools that Wirral Council have suggested that Lyndale children will be transferred to. I’ve blacked out the names and contact details of the parents who wrote this response.

LYNDALE CONSULTATION
Personal observations and thoughts from Parents with a child at Stanley School who has Severe Learning Disabilities, Autism and who is non-verbal.

Mrs XXXXXX attended the Consultation Meeting held at Stanley School on 3rd June and visited Lyndale School on 10th June, spending a morning meeting children and staff.

Firstly, the consultation document has no explanation of PMLD other than that it means Profound and Multiple Learning Difficulties (or is it Disabilities!) There is also nothing about the children currently at Lyndale (apart from the number of pupils) and their complex health and medical needs which are especially relevant to this consultation. This document has not made it easy for people and parents of especially Stanley school where there are currently no children with PMLD to be consulted properly when there is no meaningful information about the children that go to Lyndale in it. It is far too general and the information too money focused with nothing about the very complex needs of the children. The term CLD is also only defined as Complex Learning Difficulties (also disabilities) and no explanation or example given again.

We are against the proposal to close Lyndale School for the following reasons:

  • Lyndale school caters so well for the children who go to that school. Why jeopardise that? The children have very specific educational, care, health and developmental needs which we do not feel can be met at any other Wirral school. All avenues should be thoroughly explored to keep Lyndale School open. It is a vital part of the community it serves and it enriches the lives of the children that go there. Their families feel safe in the knowledge that their children are safe, happy and well looked after by the staff and health professionals at the school. This also aids their educational learning.
  • Large schools are not necessarily better schools. The advantage of a smaller school especially for children with PMLD is that their needs can be met in more manageable and stimulating surroundings and class sizes can be much smaller and better personalised.
  • Stanley school as it is currently staffed and equipped is not suitable for the children who go to Lyndale. It will need substantial investment to improve its suitability if it hopes to give children from Lyndale the same quality of life they currently have.

We can only comment on Stanley and not Elleray Park.

  • The children who attend Stanley school as well as having Complex Learning Disabilities, in many cases also have additional needs stemming from autism, communication difficulties and behavioural issues. They do not have the same physical frailties as most of the Lyndale children and many will not understand the potential dangers of physical interactions.
  • The practicalities of putting together 90+ very physically active children with predominantly physically frail and vulnerable children is a real worry for us and other parents/carers from both schools. There is a very real possibility of harm being caused inadvertently.
  • Bringing the Lyndale children to Stanley school will bring massive disruption to all of the children from both schools. It also raises serious safeguarding issues when physically frail children are in close proximity to robust physically active children with unpredictable behaviour patterns.
  • Stanley school has one full time nurse. Additional specialised staff would be needed (at significant cost) to provide medical support for the Lyndale children’s medical and health needs. Also specialised training in lots of areas including tube feeding and use of oxygen would be essential.
  • Outdoor environment. There is a lack of suitable outdoor play space at Stanley even for the current children who attend. For a new build this is unacceptable and should not have been allowed to happen. There are no green spaces nor the sensory garden which was promised. The upper school playground is the
    area in which the school transport drops off and picks up and was painted by the council with road markings. This has caused a vast amount of confusion and problems for a lot of children who are directed to play there when parents/carers spend so much time and effort trying to teach road safety. It will be even more unsuitable and totally uninspiring for children whose current school has a vast
    amount of greenery, quiet areas, a wonderful sensory garden and practical outside spaces.
  • Indoor environment. The new Stanley school has been set up to be predominantly low arousal and this conflicts with the stimulating environment at Lyndale.
  • There is not currently the capacity at Stanley to cope with the relocation of Lyndale children and provide spaces for children coming through the new Education Health and Care Plan (statementing) process due to begin September 2014.
  • Parents/carers chose a school for their child based on circumstances at the time of statementing. If Lyndale is closed then the council will be shifting the goal posts for many of the pupils in other Special Schools as well. This may lead to parents/carers of children in the other schools exploring alternative provision for their own children’s education as the whole ethos and set up of that school will change.
  • The ideal time to bring Stanley and Lyndale together would have been when Stanley was rebuilt. The new Stanley school could have been designed to cater for all the children and would have brought the 2 schools together in one space under one roof in a totally planned and coordinated way having regards for the needs of both sets of children. This possibility of closing Lyndale and transferring the children to other schools just seems totally haphazard.
  • Yes Stanley can be changed, but at what cost to Lyndale and Stanley children’s current and future education and lives? For us as a family it is not a case of not wanting Lyndale children, rather it is more that it shouldn’t have come to this situation, forcing a decision by this consultation.
  • Closing Lyndale will severely reduce the flexibility and capacity of Special Educational Needs primary school places in the borough. This is a very piecemeal and frankly idiotic way of planning SEN provision in Wirral.
  • SEN provision in the borough needs to be considered as a whole and not on a school by school basis as seems to be happening at the moment. Closing one school will have a massive effect on the sector because of the relatively small size of that sector. Once a school is closed there is no going back for anyone! This is a very risky strategy.
  • Special schools are not the same as mainstream where they can fairly easily absorb pupils from other schools if one is closed. There are many more wider issues to consider around SEN and disability. Transition, well being, funding, resources and integration are more complex.
  • The Council should be looking at the whole picture. Look at what there is now and plan for the long term future. There is a real need to come up with a sensible plan and not do it school by school.
  • The Wirral Councillors making these important and ultimately life changing decisions for many children and their families have absolutely no understanding (unless they have a disabled child or relative themselves) of the demanding and challenging issues those children and families face day to day. That is why it was so important to visit Lyndale, see the children, the school, meet with the staff and gain a valuable insight into the educational lives of these children and what it means to their families.
  • Each day can be a massive struggle for parents/carers and their disabled children and it is the staff and health professionals at our special schools who provide much needed and essential support to these children and families. Our Special schools of Lyndale and Stanley are very different from mainstream schools in the way that they operate a very flexible open door policy and the staff are very much like an extended family you can call on for advice and support when you need it. They are more than educational establishments, they are family and treasured for what they bring to our children. The depth of feeling on this special relationship should not be under estimated. If Lyndale is closed that
    relationship will be ripped apart from those children and families. How can you replace that?
  • Our children are all individuals with their own specific needs and personalities and their parents/carers know their child best. They are the ones that should be listened to and taken notice of in all areas affecting their children, especially about their education, happiness, health, safety and security. Every child is different and you cannot generalise their needs. What may be ok for one child
    could be horrendous for another and people don’t always think about that. They are all children who deserve the best we can give them to enable them to flourish and have a happy life.
  • It was an absolute privilege to visit Lyndale School and it would benefit no one to
    close it. It would cause intolerable stress and anxiety to children, families and
    staff who are uncertain about their jobs. How can taking away a major part of
    their daily lives and support system be beneficial?

Mr & Mrs XXXXXX

If you have a response to the Lyndale School consultation you’d like published on this blog please email it to me at john.brace@gmail.com.

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