Isn’t it time Wirral Council got their sums right on Lyndale School?
Isn’t it time Wirral Council got their sums right 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
I’ve rewritten this blog post a few times as it is connected to tonight’s Coordinating Committee meeting about Lyndale School and the earlier Cabinet decision on the 4th September 2014.
The funding formula the government will use for allocating schools funding in 2015-16 hasn’t been decided yet and is now out to consultation.
It seems Wirral Council officers have for nearly a year been predicting what form the regulations will take. If changes are made to the regulations as a result of the current consultation it is also possible that this will change how much funding Wirral Council will receive in 2015-16 for Lyndale School.
Certainly it seems entirely premature at this stage to go through a consultation on closure when there is uncertainty at this point as to the funding regime.
However, where does this leave Lyndale School? Looking through the proposed regulations for school funding in 2015-16 a few things did occur to me.
There is a set amount, a lump sum that each primary school receives irrespective of its size of places or pupil numbers. This six-figure sum will be lost to Wirral Council if Lyndale School closes and would ultimately result in less money being spent on children.
One of Wirral Council’s arguments for closing Lyndale School, is that the £33,470 Lyndale would receive in inclusion funding in 2015-16 would be shared between the other ten special schools who would each receive an extra £3,347 each.
Actually that’s wrong. This is because £33,470 is a full year allocation and if Lyndale was closed, it would be done part way through the year (January 2016 is about three-quarters through the 2015-16 financial year). So Lyndale School would get about £25,102 for inclusion funding in that year, which would leave £8,368. This would then be shared between the ten special schools (if Lyndale closed) who would each receive a further £836.80 each, not £3,347.
This was an error in the Cabinet report to its meeting of 4th September 2014, repeated in Surjit Tour’s letter of 30th September 2014 and repeated in the papers for tonight’s meeting. The effect of which is to exaggerate the financial case for closing Lyndale School. To my recollection the error wasn’t highlighted during the Cabinet meeting on the 4th September 2014. However I’m sure there are possibly many other errors in Wirral Council’s education department’s arithmetic, with regards to Lyndale School funding, which I haven’t spotted yet (who in a twist of irony actually also have a duty to teach children mathematics).
I wonder if anyone will mention it tonight or has scrutiny died a horrible death at Wirral Council?
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What did Wirral Council’s response to my letter about the Lyndale School Cabinet decision on 4th September say?
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
I have received a full response to my letter of the 8th September 2014 to Wirral Council about the Cabinet decision on the 4th September 2014 about the decisions on Lyndale School. This letter was received after the 24th September 2014 deadline in the letter of the 8th September 2014, although an earlier letter was also received stating that this letter would happen by the 1st October 2014. I have yet to consider my response to Wirral Council’s letter of the 30th September 2014 which is below.
The letter of 30th September 2014 is included below as is, there are some missing full stops and unnecessary apostrophes which have been printed as they were in the original letter.
For information I include it below. I am considering my options as to what to do next. The protocol states that an “application for judicial review must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose”.
That’s 3 months from 4th September 2014 so a maximum time limit of 4th December 2014. However it would be inadvisable to wait that long as permission would be denied for not being done “promptly”!
Personally I feel that we’re getting soon to the date when “promptly” would be an issue (although maybe that explains Wirral Council’s tactics). The call in has put implementation of the decision on hold until at least the 2nd October 2014.
For the ease of converting to HTML some minor formatting has been lost as to how it was laid out in order to get this published promptly. A line of equals signs represents the end of an A4 page.
(Wirral Council logo)
Department of Transformation & Resources
Joe Blott Strategic Director of Transformation &
Resources
Town Hall, Brighton Street
Wallasey, Wirral
Merseyside, CH44 8ED
DX 708630 Seacombe
Website: www.wirral.gov.uk
date 30 September 2014
By Email and Post
to Mr John Brace
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
your ref
my ref
service Legal and Member Services
tel 0151 691 8569 Please ask for Surjit Tour
fax 0151 691 8482
email surjittour@wirral.gov.uk
Response to Pre-Action Protocol letter
Dear Mr Brace
I write further to your letter before claim dated 8 September 2014. For the avoidance of doubt, this letter constitutes Wirral Metropolitan Borough Council’s (“the Council”) formal response in accordance with the Pre-Action Protocol for Judicial Review.
1. The Claimant
The proposed Claimant is Mr Brace; who is unrepresented.
2. The Proposed Defendant
The proposed Defendant is Wirral Metropolitan Borough Council.
3. Reference details
Wirral Metropolitan Borough Council: Surjit Tour, Department of Transformation and Resources, Town Hall, Brighton Street, Wallasey, Wirral, CH44 8ED
The Council’s in-principle decision of 4 September 2014 to publish statutory notices in respect of the closure of Lyndale School (“Lyndale”) from January 2016.
5. Response to the Proposed Claim
The Council denies Mr Brace’s claim for the reasons detailed below.
7. Address for further correspondence and service of court documents
Please address any further correspondence in this matter to Surjit Tour.
8. Background
8.1 Lyndale School is a special school providing specialist educational provision for primary aged pupils, the majority of whom have Profound and Multiple Learning Difficulties (“PMLD”). There are 21 pupils currently on the roll, nine of whom will be transitioning to secondary school by the end of the 2015/16 academic year. The declining number of students admitted to Lyndale over recent years has drawn into question The Lyndale’s financial viability for the future.
8.2 In 2013 the Department for Education (“DfE”) radically reformed the way in which funding for High Needs pupils is provided. Previously, funding was based significantly on the number of places available at a school rather than the number of pupils actually attending. The new system places a far greater emphasis on the number of pupils attending and their specific needs. Lyndale has set a balanced budget for 2014/15 for 40 places and 23 pupils. Applying the new intended future DfE funding arrangements, Lyndale may only be funded for 23 places, a reduction of £170,000. This shortfall would only increase as the number of pupils reduces. Funding this shortfall would not be possible without a significant reduction in funding for other schools in the area.
8.3 In addition, there are two other primary schools, namely Stanley and Elleray Park which are rated as providing good and outstanding education to students with complex learning difficulties, some of whom will have PMLD.
8.4 The Report presented to Cabinet details why the option to expand Elleray Park and Stanley Schools was the most viable option and therefore we do not propose to go into any further detail here.
8.5 The report to cabinet on the 4th September 2014 contains information on the background history of CLD/PMLD provision. The report also details the responses to the consultation and the independent consultant’s report. A link is provided for your information:
8.6.1 (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;
8.6.2 (2) Having reviewed the responses received during the consultation process, analysed the alternative options and applied the SEN Improvement Test, it is recommended that:
8.6.2.1 Statutory notices be published in respect of the closure of The Lyndale School from January 2016.
8.6.2.2 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:
(a) – Elleray Park Special School
(b) – Stanley Special School
(c) – Another appropriate school
8.6.3 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).
8.6.4 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.
8.6.5 A further report be brought on the outcome of the publication of the statutory notices.
8.6.6 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.
8.7 I respond to each of your proposed grounds of challenge as below.
9. Cabinet meeting notice requirements
9.1 You state in your letter that the Council has not complied with Regulations 8-9 of the Local Authorities (Executive Arrangements)(Meetings and Access to Information)(England) Regulations 2012 set out below as the document specified in Regulation 9 was not published.
9.2 Regulation 8
9.2.1 (1) In these Regulations a “key decision” means an executive decision, which is likely–
9.2.2 (a) to result in the relevant local authority incurring expenditure which is, or the making of savings which are, significant having regard to the relevant local authority’s budget for the service or function to which to which the decision relates; or
9.2.3 (b) to be significant in terms of its effects on communities living or working in an area comprising two or more wards or electoral divisions in the area of the relevant local authority.
9.2.4 (2) In determining the meaning of “significant” for the purposes of paragraph (1) the local authority must have regards to any guidance for the time issued by the Secretary of State in accordance with section 9Q of the 2000 Act (guidance).
9.3 Regulation 9
9.3.1 (1) Where a decision maker intends to make a key decision, that decision must not be made until a document has been published in accordance with paragraph (2), which states–
9.3.2 (a) that a key decision is to be made on behalf of the relevant local authority;
9.3.3 (b) the matter in respect of which the decision is to be made;
9.3.4 (c) where the decision maker is an individual, that individual’s name, and title if any and, where the decision maker is a decision-making body, its name and a list of its members;
9.3.5 (d) the date on which, or the period within which, the decision is to be made;
9.3.6 (e) a list of the documents submitted to the decision maker for consideration in relation to the matter in respect of which the key decision is to be made;
9.3.7 (f) the address from which, subject to any prohibition or restriction on their disclosure, copies of, or extracts from, any document listed is available;
9.3.8 (g) that other documents relevant to those matters may be submitted to the decision maker; and
9.3.9 (h) the procedure for requesting details of those documents (if any) as they become available.
9.3.10 (2) At least 28 clear days before a key decision is made, the document referred to in paragraph (1) must be available for inspection by the public–
9.3.11 (a) at the offices of the relevant local authority; and
9.3.12 (b) on the relevant local authority’s website, if it has one.
9.3.13 (3) Where, in relation to any matter–
9.3.14 (a) the public may be excluded under regulation 4(2) from the meeting at which the matter is to be discussed; or
9.3.15 (b) documents relating to the decision need not, because of regulation 20(3), be disclosed to the public,
9.3.15 the document referred to in paragraph (1) must contain particulars of the matter but may not contain any confidential, exempt information or particulars of the advice of a political adviser or assistant.
9.4 It is accepted that the “in-principle” decision is a “key decision” under Regulation 8 and therefore the Council must comply with Regulation 9.
However the Council has fully complied with Regulation 9 by publishing the Forward Plan for the period of August 2014 to November 2014.
9.5 The Forward Pan specifically identifies the “Outcome of Lyndale School Consultation” as a key decision and therefore complies with Regulation 9(1)(a) and (b).
9.6 Further, in compliance with Regulation 9(c), page two of the Forward Plan lists the names of the Cabinet members who would be making the decision. It also identifies that the decision is expected to be taken in September 2014 in compliance with Regulation 9(d).
9.7 In relation to Regulation 9(e)-(g), therefore were no reports available at the time the Forward Plan was published, however they were made available in advance of the Cabinet meeting.
9.8 For these reasons, the Council considers your point here to be without foundation.
10. Cabinet decision take by the wrong people
10.1 Your letter states that regulations require a member from the Church of England and Roman Catholic diocese to be appointed to the Council’s Families and Wellbeing Policy Committee and Coordinating Committee (“the Committees”). These committees review, amongst other things, the Cabinet’s decisions on education matters. As such they are “education overview and scrutiny committees” as defined in Regulation 13(1) Local Authorities (Committee System)(England)(Regulations) 2012 and must therefore comply with the requirements in the Regulations.
10.2 Specifically, Regulation 13(2) states that the “committees must have at least one qualifying person” which is defined in Regulation 13(3) as “the person nominated by the Diocesan Board of Education for any Church of England diocese.” Regulation 13(4) and (5) has the same provision in relation to Roman Catholic diocese. This is accepted by the Council.
10.3 However, you further state that as a Church of England diocese member was not appointed to the Committees, a member should have been appointed to the Cabinet. This is not required by any of the Regulations quoted in your letter, nor any other statutory provisions.
10.4 You claim that a Church of England diocese member was neither appointed to the Committees nor the Cabinet when the “in-principle” decision was made on 4 September 2014 that such decision is in someway invalid or defective. We set out below why the Council considers this is completely unfounded.
10.5 Firstly, Table 1, Point 18 of the Council’s Constitution states that the Executive has the authority “to consider and determine statutory proposals relating to the establishment and discontinuance of schools.” As you are no doubt aware, the Executive is comprised of the Leader of the Council and the Cabinet. Secondly, as referred to above, Diocese members are only required to be appointed to the Committees whose function is to review decision relating to decision. Furthermore, the role of the Committees is to scrutinise decisions of the Cabinet and, if necessary, recommend that Cabinet reconsider the decision. The Committees have no authority to nullify the decision of the Cabinet.
10.6 The Cabinet was not required by any regulation or statutory provision to appoint a diocese member and had absolute authority to take the decision in this matter. Any claim to the contrary in entirely without foundation.
10.7 However, as stated, the Council is aware that it is required to have a Church of England diocese member on the Committees. To this end, we have contacted the diocese on numerous occasions in order to receive an appropriate nomination from them. As yet, a nomination has not been received despite the Council’s best efforts. This is due to no fault of the Council and as stated above, this anomaly does not invalidate the decision taken by the Cabinet on 4 September 2014.
11. Human Rights
The Council is fully aware of its obligations under the Human Rights Act 1998 (“HRA”) and the European Convention on Human Rights (“ECHR”) and ensures that all decisions it makes are fully compliant with these.
The Council refutes any suggestion that there has been a breach of the human rights of any children by the decision under challenge, for the reasons set out below.
11.1 Protocol 1 (Article 2) – Right to education
11.1.1 The assertion that the Council is denying the children of Lyndale the right to an education is entirely without merit. Article 2 of Protocol of the ECHR does not provide a pupil of an educational institution with the right to receive an education or be taught at a specific institution. It merely provides that a pupil must have access to the education system. No child currently at Lyndale is being, or will be, denied access to an education.
11.1.2 In addition, case law has established that local authorities have the discretion to allocate resources how they deem fit when arranging education provision, provided that a pupil is not denied access to the education system, which has not happened in this case.
11.1.3 No final decision has been made in relation to whether to close Lyndale or not. No child will be denied the right to continue their education and so will not be denied access to the system Therefore, there is no legal basis for this alleged ground of challenge.
11.2 Article 2 – right to life
11.2.1 To establish that this Article is engaged, you would have to demonstrate that either; a) the Council were deliberately trying to end the lives of the pupils; or b) we ought to be aware that there was a real and immediate risk to the lives of the pupils were they to be moved to alternative educational provision.
11.2.2 No decision has yet been made in relation to any specific pupil transferring to an alternative educational provider. Therefore this ground of challenge is entirely baseless.
11.2.3 Any suggestion that the Council are deliberately trying to end the lives of the children is simply untenable and there is no evidence to suggest that there is a real and immediate risk to their lives given that no decision has been made to transfer any child to an
alternative educational provider. This ground of challenge is therefore completely unfounded.
11.3 Article 3 – prohibition of torture
11.3.1 The Council denies that the children of Lyndale would be subject to torture, inhumane or degrading treatment.
11.3.2 Torture is defined as “deliberate inhumane treatment causing very serious and cruel suffering.” It is refuted that the children of Lyndale would be subjected to any suffering, let alone serious or cruel suffering or otherwise.
11.3.3 Inhumane treatment is defined as treatment “causing intense physical and mental suffering.” There is no evidence to suggest that any children will be subjected to physical or mental suffering.
11.3.4 Degrading treatment is “treatment or punishment” which “humiliates and debases” the victim. The Council’s in-principle decision to publish a statutory closure notice cannot in any way be described as a decision designed to humiliate or debase the children of Lyndale.
11.3.5 You have provided no evidence to substantiate this claim and is it entirely without merit.
11.4 Article 11 – freedom of assembly
11.4.1 Your reference to this Article is unclear and the Council considers that the Article is not engaged in this matter in any event.
11.5 Article 14 – prohibition of discrimination
11.5.1 This Article is only engaged if a breach of another Article is proven. Given the difficulties, set out above, that you would have to sustain an argument that any of the above Articles have been breached, the Council denies that Article 14 is relevant.
11.5.2 You suggest in your Letter before Claim that the political views of the parents were discounted and that this, in some way, led to Article 14 being engaged. This is denied given the points raised above however we wish to point out that the views expressed by the parents during the consultation process were taken into account in this matter as demonstrated by the summary of the responses considered by Cabinet (which is publicly available online). The Council refutes the suggestion that differing political views affected the decision and denies that any individual or group has been discriminated in any way by its “in-principle” decision.
11.5.3 Further, your reference to children being born disabled is unclear.
12. Equality Act 2010 (“Equality Act”)
12.1 Section 13
12.1.1 You have provided no evidence to sustain an allegation that less money would be spent on the education of the Lyndale children if Lyndale were to close, therefore the Council considered this allegation unfounded.
12.1.2 As mentioned in the Cabinet Report, the net result of a potential closure of Lyndale would be a £33,470 budget surplus. If the Council made a final decision to close Lyndale after completing all of the 5 stages of the statutory processes this could be shared across all remaining schools who would stand to gain £3,347 additional funding each.
12.1.3 The Council does not hold any information relating to the protected characteristics of any staff members of Lyndale. If you require this information we suggest you make further contact with the School direct.
This information is not held by the Council but the governing body of the school
12.2 Section 15
12.2.1 The aim of this process is to secure the highest standard of education possible for the children of Lyndale. In order to secure this, the Council has a duty to ensure that the provision of the education is affordable in the long-term. Your assertion that this is not a legitimate aim for the purpose of the Act is without foundation.
12.2.2 The Council has consulted extensively with interested parties, including staff, parents, Governors and the general public with regard to the potential closure of Lyndale and will continue to invite representations from such parties during the representation stage of the Statutory process. Having considered these views and the report which considered the SEN Improvement Test which was applied to a range of different options it has been decided, in principle, that the closure of Lyndale is the most proportionate means of achieving the legitimate aim set out in the 4th September cabinet report.
12.3 Section 19
12.3.1 This argument is legally flawed as, pursuant to s.19(1) Equality Act, the parents would have to possess a relevant protected characteristic. You have provided no evidence of this.
12.4 Section 26
12.4.1 The allegation that the Council has in any way violated the dignity of the persons affected by its decision, whether the children or otherwise, is entirely misconceived and without foundation and is not supported by any evidence.
12.4.2 Further, there is no evidence that any current or previous members of staff at the school have been intimidated by any members of the Council.
12.5 Section 27
12.5.1 For this section to be engaged, the Council would have had to have subjected the parents to a detriment directly because they have threatened legal proceedings. As far as the Council is aware, no legal proceedings have been issued.
12.5.2 You have provided no evidence of this and therefore your claim is unfounded. In any event, the Council denies that any parents have been subject to a detriment.
12.6 Sections 85 and 86
12.6.1 Your claim in relation to these sections are also without foundation as you have provided no evidence to suggest that any children will be subject to a detriment as a result of this decision.
12.6.2 Furthermore, the Council has consulted a wide range of interested parties on a number of different options to ensure that all consultees were aware of the different proposals that the Council wished to consider prior to making an appropriate “in-principle” decision that would lead to the children continue to receive the highest standard of education.
12.6.3 In addition, the decision to commence the statutory process to publish a closure notice to close the school from 2016 is not determinative that the school will be closed or that the children will be moved to another school which is specifically designed to provide education to pupils with special educational needs and other disabilities. On that basis, the children will suffer no detriment as a result.
12.6.4 Further, the allegation that children are being penalised for their parents’ opposition to the proposals, or for any other reason, is entirely without foundation. This is simply incorrect and there is no evidence to support such a spurious allegation.
12.7 Section 112
12.7.1 The Council strenuously denies any breach of the Equality Act, therefore your point in relation to this section has no legal foundation.
12.8 Section 149
12.8.1 For the reasons set out at paragraph 14 below, the Council has clearly discharged its public sector equality duty under the provision of the Act.
12.9 Section 158
12.9.1 The Council accepts that the pupils at Lyndale have educational needs that are different from the needs of pupils in mainstream education. However, you state in your letter that pupils with Profound and Multiple Learning Difficulties (“PMLD”) form a small minority of the school population. This is not the case, there are 21 pupils on the roll at Lyndale, 18 of which are diagnosed as having PMLD.
12.9.2 In dealing with your point, we reiterate that the level of education provided to the children will not be affected by the proposals.
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13. Disability Discrimination Act 1995 (“DDA 1995”) and the Disability Discrimination Act 2005
13.1 I do not propose to respond in detail to the provisions referred to in the above Acts given that both were repealed by Schedule 27(1) Paragraph 1 of the Equality Act.
13.2 As a gesture of goodwill, I have listed below the points you have raised in relation to these Acts that are covered by the new Equality Act.
13.2.1 Sections 21B, 28B, 28C and 28F DDA 1995 are now covered by s.13 Equality Act.
13.2.2 Sections 21D and 49A DDA 1995 are now covered by s.149 EA 2010.
13.3 I have responded to the points raised under the new provisions above.
14. Equality Impact Assessment (“EIA”)
14.1 As mentioned above, the Council is fully aware of its public sector equality duty to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations between persons with a protected characteristic and those without.
14.2 In order to comply with this, the Council commissioned an EIAs which commenced on the 6th December 2013 and further reviewed on the 6th August 2014. The purpose of the EIA was to ensure that the Cabinet was fully aware of any equality implications when considering a proposal that Lyndale may close before making an in principle decision to public a statutory closure notice.
14.3 The EIA, which is publicly available online, assesses the impact that the proposals could have on pupils; staff at both Lyndale and other schools; and the parents of children affected by the decision. The EIA refers to the potential positive impact that the proposals could have on the children concerned, for example they may be provided access to new and varied opportunities, and steps that can be taken to ensure there are no negative consequences.
14.4 The members of the Cabinet had access to the EIA documents and reviewed both of them prior to making its decision of 4 September 2014. As such, it is clear that the council has had “due regard” to its’ public sector equality duty under the Equality Act.
15. SEN Improvement test
15.1 The Council is fully aware of its obligation to apply the SEN Improvement test to the decision in this matter. To assist compliance with this duty, the Council instructed an independent consultant to assess all the options.
15.2 Specifically in relation to the points you raise, Table 1 and Part 7.7 of the independent consultant’s report referring to the SEN Improvement Test (which is also publicly available) indicate that both alternative schools, Stanley and Elleray Park have at least as good Ofsted judgements. This demonstrates that if in due course it is proposed that Lyndale pupils are placed in either of these schools it will not limit their access but will improve their access to high quality education and services.
15.3 The two alternative schools are special schools with staff that are suitably qualified to teach and support children although no decision has yet been made that a particular child will move to either of these alternative schools. Furthermore, if in due course the Council decides to implement a decision to close Lyndale it will look to support staff at The Lyndale in finding alternative employment. However, no decisions in this regard have been made, so this particular ground of challenge is extremely premature. However, the Council wishes to point out that no pupil’s access to specialist staff will be affected.
15.4 Part 7.7 of the Report also states that the first alternative school, Stanley, has new accommodation specifically designed to cater for children with PMLD. In particular, it has 12 large classrooms, a hydrotherapy pool and sensory facilities. The second alternative school, Elleray Park, is currently being expanded to enhance the specialist facilities that pupils with PMLD require. As such, it is clear that if a decision to close Lyndale is made in due course, pupils at Lyndale will be able to access suitable accommodation facilities at other schools in the area. This may include Elleray Park or Stanley Schools whose capacity has recently been increased.
15.5 On that basis your assertion that there will not be an improved supply of places is unfounded.
15.6 Further, reiterating what has already been mentioned in this letter, both Elleray Park and Stanley schools are special schools and are therefore more than able to receive pupils with PMLD and other complex needs.
15.7 Referring to the point you raise regarding funding, the Report clearly states that this is a viable option. Most other options lead to a budget deficit of between £26,000 and £168,000 which is financially unsustainable and would lead to a significant reduction in the quality of education provided to the pupils at Lyndale, which you will agree, is not a viable option. This proposal indicates there would be a surplus of £33,000.
16. Premature Challenge
16.1 In addition to all of the reasons stated above, the Council regards your threat of Judicial Review as being extremely premature. As is clearly stated in the Cabinet minutes, this is merely an “in-principle” decision to proceed with the statutory process.
16.2 There are still several stages of the statutory process to undergo which includes a stage whereby any person or organisation will be invited to make further representations to the Council in response to the statutory notices. The Cabinet is under a statutory obligation to consider such representations before making a final decision. It is possible, that the Council may decide not to close Lyndale School.
16.3 As these processes have not yet been completed and no final decision on the matter has been made, it is the Council’s view that any suggestion of a way of challenge by way of Judicial Review at this stage is extremely premature and unnecessary.
17. Further information
17.1 At section nine of your letter you outline numerous requests for further information. The Council’s response to each request is detailed below.
17.1.1 The Council’s Cabinet Report of 4th September 2014, its appendices and the record of the Cabinet decision of 4 September
2014 sets out fully the Council’s reasons for its “in-principle” decision.
17.1.2 The Council does not hold statistical information relating to staff at Lyndale. It is possible that Lyndale may hold such information and it would therefore be appropriate for you to deal with Lyndale direct in relation to this request
17.1.3 You have requested information relating to statistics on any protected characteristics of the Council’s workforce. The Council does hold such information, but cannot see the relevance of this request in light of the proposed grounds of challenge. Any such information is held purely based on information employees have provided about themselves to the Council as their employer and is not relevant to the in principle decision to publish a statutory closure notice.
17.1.4 In relation to your request for statistics on pupils at Lyndale – the Council can confirm that currently 21 pupils are listed on the admission the roll at Lyndale. 18 children have been diagnosed as having PMLD, three have complex learning difficulties, two are of Asian (Indian) origin and the remainder are White British.
17.1.5 The Council believes that the financial information that is publicly available as part of the Cabinet report fully discharges its duty of candour in relation to the request for a three year projection of Lyndale School’s budget.
17.1.6 Any earlier draft of the report detailing the outcome of the consultation are not relevant as officers continued to consider their report in the light of feedback and responses
18. Documents you request
18.1 At Section 10 of your letter you request a number of documents that you consider relevant. The Council’s response to each request is detailed below.
18.1.1 Please refer to Appendix 6 of the Cabinet report (which is publicly available) which contains a summary of the responses received during the consultation.
18.1.2 The Council’s response to your request for these documents is detailed at Paragraphs 17.1.5 and 17.1.6 above.
18.1.3 Six public meetings which formed part of the Council’s consultation process were held, to which all interested parties including staff and trade unions were invited to attend. Notes of these are published with the Cabinet report at Appendices 5-7.
18.1.4 As part of the Council’s consultation process it met with the Chair of governors of Lyndale and the whole governing body in separate meetings.
18.1.5 There was no report commissioned from a Principal Educational Psychologist.
18.1.6 Details of how the Council think the preferred option meets the SEN Improvement test – this is detailed extensively in the Cabinet Report, its’ appendices and Paragraph 15 above.
19.1 For the reasons set out at paragraphs 9 and 10, the original Cabinet decision of 4 September 2014 was entirely valid and therefore your request that the Council issue an undertaking to postpone proceeding with the statutory process is unreasonable and inappropriate.
19.2 Any further Cabinet meeting that takes places that considers any decision associated with the decision made on the 4 September 2014 will, of course, comply fully with the regulatory and constitutional requirements, which the Council is subject to.
19.3 The Council is committed to openness and transparency about its decision-making and from the nature of the information that is publicly available all interested parties are able to determine the full range of information the Council took into account, including the different options considered, before the decision of 4 September 2014 was made. The Council is satisfied that its decision making process to date has been transparent and open, and does not consider that a further meeting would be beneficial particularly in light of the fact that the early stages of the statutory process have not yet completed and no final decision with regard to the potential closure of Lyndale has been made.
If you are still minded to pursue a claim for Judicial Review, the Council will vigorously oppose any proceedings and seek to recover its costs of defending such proceedings. We consider the threat of such proceedings to be premature, wholly misconceived and entirely without merit for all the reasons set out above.
Yours sincerely,
(signature of Surjut Tour)
Surjit Tour Head of Legal and Member Services and Monitoring Officer
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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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Video of Wirral Council Special Cabinet meeting over Lyndale School and copy of Cabinet recommendation for closure
Video of Wirral Council Special Cabinet meeting over Lyndale School and copy of Cabinet recommendation for closure
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Video of the Special Cabinet meeting held on the 4th September 2014 to discuss Lyndale School. Please note there is a small break in filming between parts 5 and 6 in order for depleted batteries to be changed.
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 the recommendation agreed at the special meeting of Wirral Council’s Cabinet on the 4th September 2014. An amendment to this recommendation was also proposed and agreed, however the amendment wasn’t circulated to those present at the meeting and the below is the original (unamended) recommendationEd – 7/9/14 10:18 recommendation as amended by the new amendment which adds part 1.3.
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.
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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.
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