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When is a call in meeting not a call in meeting? When it’s adjourned…

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Cllr Steve Foulkes (Vice-Chair): Can I just explain Stuart Whittingham’s not available tonight, so as Vice-Chair of the Committee I will take over that role. There are a number of substitutions, Denise Realey’s here for Stuart, Wendy you’re here for Steve Williams I believe and John Salter is here for Ron Abbey. That makes up the full complement of the committee.

I mean clearly, clearly is this mike too loud because I’m conscious, getting on people’s nerves.

I’m conscious that this is rather an unusual meeting.

Cllr Moira McLaughlin: That’s near enough I suppose.

Cllr Steve Foulkes (Vice-Chair): In as much as there has been some issues in and around the constitution of the committee and our legal obligations to do things correctly. It would appear, ok let me do first things first, any apologies for absence I think I’ve covered those. Code of Conduct Declarations of Interest, are Members declare that there’s no whip? Is that very important and declarations of interest that’s agreed and apologies?

So going back backtracking we’ve found ourselves in a situation where I think in the reorganisation of our constitution, for all good intents and purposes, we have tried to streamline the call in procedure by all agreeing during the set up of the constitution, I don’t think it was objected to that the Coordinating Committee would be the call in committee effectively to deal with all the call ins.

However we seemed to have overlooked those issues where there are educational matters that we may be required to have extra representation given the nature of the debate and obviously in and around education policy we would welcome I think expert and independent observers and those people with voting rights.

So if someone had approached the Committee prior to these call ins raising the issue, I think we would have probably said right it would be a good idea for these representatives in attending the committee meeting, so in a roundabout way I think we’re doing people who are here about the call in a better service than we otherwise would have done so.

However the complications of running a Council and constitutions, means we haven’t got the ability to simply co-opt but that’s not clearly the way the constitution was written, it would have to go to full Council. So it will be a full written proposal where I intend to adjourn this meeting and move to the new date which will be well publicised and advertised.

In the in between stage of that we’d be reliant on full Council to be able to move the necessary constitutional amendment where we will be able to take on board the representation, particularly those who are parent governors and the representatives of the two dioceses. There is a resolution so I think it might be fair to all elected Members to distribute that.

First, the other thing I want to say on behalf of the Authority. We’ve never said this Authority won’t make mistakes or won’t get things wrong. I think it’s how we react to them and how we deal with them is the measure of whether the organisation is better or not. I’ve been greatly enthused by the way that scrutiny has run this year, it’s my first time on scrutiny and I think that…

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Councillors agree to adjourn Lyndale School call in meeting

The following recommendation proposed by Cllr Steve Foulkes and seconded by Cllr Patricia Glasman was agreed unanimously by those on Wirral Council’s Coordinating Committee who were Cllr Steve Foulkes (Vice-Chair, Labour), Cllr John Salter (Labour), Cllr Jean Stapleton (Labour), Cllr Moira McLaughlin (Labour), Cllr Denise Realey (Labour), Cllr Patricia Glasman (Labour), Cllr Paul Doughty (Labour), Cllr Bernie Mooney (Labour), Cllr Denise Roberts (Labour), Cllr Leah Fraser (Conservative), Cllr Adam Sykes (Conservative), Cllr David Elderton (Conservative), Cllr Wendy Clements (Conservative), Cllr Andrew Hodson (Conservative) and Cllr Alan Brighouse (Liberal Democrats).

The same councillors will make up the Coordinating Committee meeting to consider the Lyndale School call in on the 27th February (plus the co-optees with voting rights referred to in the recommendation below).

RECOMMENDATION

Council at its Annual Meeting on 20 May 2013, appointed two Parent Governor Representatives and Diocesan Representatives (as statutory co-optees) to Families and Wellbeing Policy and Performance Committee. The Committee is responsible for the scrutiny of education matters and the statutory co-optees are entitled to participate and vote pn such matters.

However, the Council’s Constitution provides that the Policy and Performance Co-ordinating Committee be responsible for dealing with all call-ins. As both call-ins in question relate to education matters, it is appropriate that the statutory co-optees referred to above are afforded the opportunity to participate and vote in respect of both call-ins.

Following the Cabinet meeting on 16 January 2014, the following two decisions have been called in and must be considered by the Policy and Performance Co-ordinating Committee.

Cabinet Minute No. 129 – Report Seeking Approval to consult on the Closure of the Lyndale School; and
Cabinet Minute No. 140 – Proposals for Changes to School Top Up Payments for Students with High Needs

Given that both call-ins relate to educational matters, it is not possible to consider either call-in until the Parent Governor and Diocesan Representatives have been co-opted onto this Committee

It is therefore recommended that:
(1) the Committee notes the two call in notices received;

(2) the meeting be adjourned until 6pm on Thursday, 27 February 2014;

(3) it is recommended that the Council extends the Membership of the Policy and Performance Co-ordinating Committee to include:
(a) Two Parent Governor Representatives; and
(b) A representative of each of the appropriate Diocesan Authorities;
With voting rights, for the purpose of dealing with educational matters

(4) in order to meet legal requirements when considering educational matters the Council be recommended to co-opt onto the Policy and Performance Committee:
(a) the following two Parent Governor Representatives, elected to sit on the Council’s scrutiny committees that deal with education (with voting rights, in respect of educational matters only)

Mrs H Shoebridge (until 28 October 2015); and

Mrs Nicola Smith (until 8 February 2017)

and

(b) the following two Diocesan Authority representatives (with voting right in respect of educational matters only)

Damien Cunningham (representing the Roman Catholic Diocese of Shrewsbury); and

A representative of the Church of England Diocese of Chester (currently a nomination has not yet been made).

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The reasons why Wirral Council’s Lyndale School call in is being delayed

Labour's Cllr Tony Smith (Cabinet Member for Children and Family Services) explains at a Wirral Council Cabinet meeting why he thinks the Cabinet should agree to consultation on closure of Lyndale School
Labour’s Cllr Tony Smith (Cabinet Member for Children and Family Services) explaining at a Wirral Council Cabinet meeting why he thinks the Cabinet should agree to consultation on closure of Lyndale School (which is the decision that was called in)

I read the Wirral Globe article headlined “Town Hall bungle means Lyndale meeting called off” with interest as it was related to my earlier blog post headlined “Is the Lyndale School call in going to the wrong Wirral Council committee?”.

Basically Wirral Council is stuck (and apologies for the cliché) between a rock and a hard place. Their new constitution states call ins have to be decided by the Coordinating Committee, however a law (The Education (Parent Governor Representatives) Regulations 1999) means it has to be decided by a committee with parent governor representatives on and a previous case Transport and General Workers Union and Hilary Hollington v Wallsall Metropolitan Borough Council [2001] EWHC Admin 452 means that if they went ahead and made a decision on the Lyndale School call in by the Coordinating Committee without any parent governor representatives having a vote as part of that committee’s decision, then such a decision would almost certainly be quashed (based on that bit of case law) by a High Court Judge if any of the parents requested a judicial review.

The only committee that could legally decide the call in (that has parent governor representatives on it) is the Families and Wellbeing Committee (however for it to do so would currently be unconstitutional). There was a meeting scheduled of the Families and Wellbeing Committee for Thursday but it was mysteriously cancelled. If anybody knows what this cancelled meeting was about and if it was related to the call in please leave a comment.

So what happens next? Well the Coordinating Committee will meet on Wednesday 5th February as planned, but at the meeting will probably receive legal advice that they can’t make a decision on the call ins as they don’t have any parent governor representatives on their committee.

To progress with this matter will need a change to Wirral Council’s constitution. Such changes originate as a recommendation by the Standards and Constitutional Oversight Committee first (usually on the advice of Surjit Tour), which next meets on the 24th February. A recommendation would then be made to change the constitution to Budget Council on the 25th February and presuming the change is agreed to, the call in will be decided on the 27th February by the Families and Wellbeing Policy and Performance Committee.

The quote from Cllr Leah Fraser in the Wirral Globe article of “The parents and staff of Lyndale School deserve better than this chaos” is one I agree with. Both the quotes of Cllr Phil Davies and Joe Blott leave out an important point not mentioned, which is that the parent governor representatives will have a vote in the decision over the call ins. I’m not sure if the Diocesan representatives have a vote too (it’s something I’d have to look into), but as far as I recall one of the two Diocesan representative positions on the Families and Wellbeing Policy and Performance Committee is vacant (although an appointment to it could be made at the next Council meeting).

However taking from 16th January (date of the original Cabinet decision) to 27th February (date of the proposed Families and Wellbeing Policy and Performance Committee to consider the call in) is a total of one month and eleven days. Certainly it is not ideal for the parents and staff of Lyndale School to face uncertainty over the outcome for such a prolonged length of time.

What Wirral Council’s constitution currently states on call ins is included at the end of this blog post. Changes to it will need to be made if the Lyndale School call ins are to be made by the Families and Wellbeing Policy and Performance Committee on the 27th February.

The controversial rewrite of Wirral’s constitution (which included changing the call in procedure) happened at an extraordinary meeting of Wirral Council last April.

Here are some quotes from what councillors said at the time back in April 2013 about the constitutional changes which Labour councillors voted for, but Conservative and Lib Dem councillors were opposed to.

Cllr Phil Davies (Labour’s Leader) (who recommended the constitutional changes which included changes to the call in system) said, “What are the aims of the changes we’re proposing? Well we want to clearly improve our governance and decision-making procedures.”

Cllr Jeff Green (Leader of the Conservatives) said, “One of the elements of these changes is to remove the Children and Young People’s and the Adult Social & Health and Wellbeing Scrutiny Committees. Given Wirral’s history …. it seems to me a backward and dangerous step to actually remove any of the scrutiny.”

Former Councillor Darren Dodd (Labour) said, “This is what the people of Wirral have been asking for, for for a very long time.”

Cllr John Hale (Conservative) said, “These proposals should be consigned to the dustbin where they belong”.

Cllr Chris Blakeley (Conservative) said, “Where will it end, what next? Will Wirral be twinned with Pyongyang?”

Cllr Tom Harney (Liberal Democrats) said, “We don’t know where we came from, we don’t know where we’re going.”

Excerpt from Wirral Council’s constitution on call ins

35. Calling in of decisions

(1) All decisions of:
(i) the Executive Board,
(ii) an individual member of the Executive Board or
(iii) a committee of the Executive Board, and
(iv) key decisions taken by an officer;
shall be published, and shall be available at the main offices of the Council normally within 2 days of being made. All members of the Council will be sent a copy of the decision.

(2) That notice will bear the date on which it is published and will specify that the decision will come into force, and may then be implemented, unless the decision is called in for scrutiny by 9a.m. on the Thursday following publication of a decision on Friday. (Adjusted by a maximum of one day in there is one or more Bank Holidays in that period)

(3) (a) During that period, the Chief Executive shall Call-In a decision for scrutiny by the Co-ordinating Committee if so requested by any six members of the Council who have given detailed reasons for the Call-In of the decision. The detailed reasons must be provided by the Lead signatory, by the Call In deadline. When a Call In is requested the Chief Executive shall liaise with the Member listed first on the Call-In schedule, to ensure there is sufficient information provided to enable the Call-In to proceed. As long as there is a clear reason given, the call-in should be allowed. He/she shall then notify the decision-taker of the Call-In. He/she shall call a meeting of the Committee on such date as he/she may determine, where possible after consultation with the Chair of the Coordinating Committee, and in any case within 7 working days of the decision to call-in.

(b) The relevant Chief Officer and all members will be notified of a call-in immediately and no action will be taken to implement the decision until the call-in procedure has been completed. A decision of the Cabinet, a committee of the Cabinet or individual Cabinet member may be called in only once.

(4) Having considered the decision, the Co-ordinating Committee may:-
(i) refer it back to the decision making person or body for reconsideration, setting out in writing the nature of its concerns or;
(ii) refer the matter to full Council. Such a referral should only be made where the Co-ordinating Committee believes that the decision is outside the policy framework or contrary to or not wholly in accordance with the budget. The procedures set out in those rules must be followed prior to any such referral.

(5) If a decision is referred back to the decision making person or body it shall be reconsidered in the light of the written concerns of the Co-ordinating Committee before a final decision is made.

(6) If following a call in, the Co-ordinating Committee does not refer the matter back to the decision making person or body and does not refer the matter to Council, the decision shall take effect on the date of the Co-ordinating Committee meeting. If the Co-ordinating Committee does not meet the decision shall take effect from the date when the Committee should have met.

(7) If the matter is referred to full Council and the Council does not object to a decision which has been made, then the decision will become effective on the date of the Council meeting.

(8) If the Council does object the Council may take a decision, which is outside the policy and budgetary framework. Otherwise the Council will refer any decision to which it objects back to the decision-making person or body, together with the Council’s views on the decision. That decision making body or person shall choose whether to amend the decision or not before reaching a final decision and implementing it. Where the decision was taken by the Executive Board as a whole or a committee of it, a meeting will be convened to reconsider within ten working days of the Council request. Where the decision was made by an individual, the individual will reconsider within ten working days of the Council request.

(9) Call-in should only be used in exceptional circumstances where members have evidence which suggests that the decision was not made in accordance with the principles of decision making in the constitution.

(10) Call-in and urgency
(a) The call-in procedure set out above shall not apply where the decision being taken by the Cabinet is urgent. A decision will be urgent if any delay is likely to be caused by the call-in process would seriously prejudice the Council’s or the public’s interest. The record of the decision and the notice by which it is made public shall state whether, in the opinion of the decision making person or body, the decision is an urgent one, and therefore not subject to call-in. The Chief Executive must agree both that the decision proposed is reasonably in all the circumstances and to it being treated as a matter of urgency. Decisions taken as a matter of urgency must be reported to the next available meeting of the Council, together with the reasons for urgency.

(b) The operation of the provisions relating to call-in and urgency shall be monitored annually, and a report submitted to Council with proposals for review if necessary.

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7 invoices during Wirral Council’s “spending freeze” are they all essential spending?

Wirral Council’s Cabinet recently voted to consult on closing Lyndale School because of a projected shortfall this year in Lyndale School’s budget of £15,667 and next year of £72,000.

The Wirral Council invoices below are all for 2013, after Wirral Council instituted a freeze on “non-essential spending” in the Autumn of 2012. As usual you can click on the thumbnails for larger versions of the invoices. What is or isn’t “essential spending” is quite subjective, but if you have a strong opinion on way or the other please leave a comment.

Invoice 1

This is for £64,800 to a London-based company called The Ten Group Limited. The invoice is for answering governors questions at a one hundred and twenty Wirral schools. Surely Wirral Council could either direct governors questions to the Wirral Schools Forum or its own officers to answer? Even hiring someone full-time to answer governors questions would be cheaper than outsourcing it!

Invoice 2A/2B

The first of these two invoices is to a Rotherham based company called U-xplore Ltd for £23,256 for renewal of twenty-four full U-Explore licences. It’s for online careers advice. The company also charged £1,720.80 for “one month hosting” although what they’re hosting isn’t specified on the invoice. As part of the Greater Merseyside Connexions Partnership Wirral Council already contract with Connexions for careers advice who provide a jobs explorer database to schools and colleges, access to software, as well as face to face careers advice. So why the duplication?

Invoice 3A/3B

These two invoices total £10,368 to Theatre and Ltd (based in Huddersfield). It is for a four-day safeguarding think family training workshop. The money is for development, scripting, rehearsal and includes £249.60 in travel & mileage costs. Couldn’t Wirral have hired a more local company (which would’ve meant a saving on mileage) & surely everything anybody needs to know about safeguarding could be covered in a course of less than four days? I’m sure a local college or university could have put on a bespoke workshop for less than £10,000! Finally how many people actually went on this workshop?

Invoice 4

This invoice is from Wirral Metropolitan College for £3,240 for 27 hours of training about home based caring for up to twenty people for a course run over ten days for staff in the Wirral Council’s Surestart team. It ties in with my point about the earlier invoice that Wirral Council can get training from local providers cheaper and with the added bonus of supporting local employment!

Invoice 5

This is for £1,194 to Veryan for a “Veryan WorkPlace annual licence”. Veryan is a Hampshire based software company and workplace is a piece of software to manage work experience placements. I don’t have a problem with using software for this, although it’s the kind of simple application based on a database that Wirral Council could easily write in-house (which would save the cost of an annual licence fee).

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Is the Lyndale School call in going to the wrong Wirral Council committee?

The start of this story goes all the way back to my teenage years when a Labour government was elected in 1997 having used the slogan “education, education, education” during their election campaign. A few years after being elected, Labour’s Estelle Morris, a Minister in the Department for Education and Employment brought in legislation called The Education (Parent Governor Representatives) Regulations 1999. As explained in the explanatory notes, “These Regulations make provision for representatives of parent governors at maintained schools to be included in the education committees of local education authorities” and “Regulation 10 sets out the voting rights of a parent governor representative. Such a person may vote, broadly, on any matter related to the local education authority’s schools and pupils, save that he may not vote on the determination of the authority’s budget.”

Two years after these regulations became law, there was a judicial review case involving them Transport and General Workers Union and Hilary Hollington v Wallsall Metropolitan Borough Council [2001] EWHC Admin 452. Wallsall Metropolitan Borough Council’s Education and Community Services Committee had voted eleven to nine to outsource the school meals service to P Martin & Sons (Trefonen) Limited which had previously been provided by the Council’s Direct Services Labour Organisation. The parent governor representatives (numbering three) had been told at the meeting that they couldn’t vote on the catering contract decision, but had wanted to vote against contracting the service out. If the parent governor representatives had been allowed to vote the result would’ve been different.

The result of this case was that the High Court Judge in the case quashed the decision of the committee and granted a declaration that the contract between Wallsall Metropolitan Borough Council and P Martin & Sons (Trefonen) Limited was void. Wallsall Metropolitan Borough Council (as the losing party) had to pay the other sides’ legal costs of £15,649.83 and permission to appeal was denied.

Wirral Council is a local education authority and its Wellbeing Policy and Performance Committee has the legal minimum of two parent governor representatives (with voting rights on education matters). The Church of England diocese representative is currently vacant but it also has one Roman Catholic representative with voting rights.

When the decision to consult on closing Lyndale School was called in (there are previous blog posts on the original Cabinet decision and some reasons why it should be called in) under the new constitution agreed by Wirral Council last year, the call in (at least at the point of writing) is down to be reviewed at a meeting of the Coordinating Committee on the 5th February.

The Coordinating Committee (comprising 15 councillors) has a split of 9 Labour councillors, 5 Conservative councillors and 1 Lib Dem. The Labour Chair also has a casting vote in the event of a tied vote.

The Families and Wellbeing Committee (comprising 15 councillors plus co-optees) has a split of 9 Labour councillors, 5 Conservative councillors and 1 Lib Dem. There are also two parent governor representatives (Mrs Nicola Smith and Mrs H Shoebridge both of them have voting rights) and a Roman Catholic Diocesan representative Mr Damian Cunningham (who also has voting rights). The Chair (who has a casting vote in the event of a tied vote) is a Conservative.

If the call in goes to the Coordinating Committee, the nine Labour councillors can just vote to uphold the Labour Cabinet’s decision as nine is a majority on a fifteen person committee.

However if the call in goes to be decided at the Families and Wellbeing Committee, then Labour councillors only have half the votes (nine out of eighteen) on that committee. If the call in went to this committee and Labour councillors voted to uphold the Cabinet’s decision that would be only nine votes. If the Conservative councillors, plus the Lib Dem councillor, plus the parent governor representative and Roman Catholic Diocesan representative voted to send the decision back to Cabinet to be changed, then there would be a deadlock of nine votes either way. In this case the Conservative Chair would have a casting vote, which is usually used in the same way that that councillor originally voted.

Regulation 3 of the Education (Parent Governor Representatives) Regulations 1999 states “A local education authority shall appoint at least two but not more than five parent governor representatives to each relevant committee of the authority” and “relevant committee” is defined as here as “a committee appointed by a local authority, or by two or more local authorities, in accordance with section 102 of the Local Government Act 1972 wholly or partly for the purpose of discharging any functions which are conferred on the local authority or authorities in its or their capacity as a local education authority or authorities, but it does not include any committee the decisions of which are subject to scrutiny by another committee which is itself a relevant committee.”

So, is the Coordinating Committee making a decision whether or not to uphold the Cabinet decision to consult on closing Lyndale School a function conferred on Wirral Council in its capacity as a local education authority? Yes it is.

Does the Coordinating Committee have parent governor representatives on it? No.

Regulation 10 of the Education (Parent Governor Representatives) Regulations 1999 seems to be quite clear:

Voting rights of parent governor representatives

10. (1) Subject to paragraph (2), a parent governor representative shall be entitled to vote on any of the following matters—

(a) matters which relate to schools maintained by the local education authority;
(b) matters which relate to pupils who are educated in schools maintained by the local education authority, or who are educated by the local education authority otherwise than at school.

(2) A parent governor representative shall not be entitled to vote on the determination of the local education authority’s total revenue expenditure on education or the determination of its total capital expenditure on education.

So I handed the following letter to the Chair of the Coordinating Committee Cllr Stuart Whittingham on the evening of 29th January, who has passed it to Surjit Tour. I had a brief discussion with Cllr Stuart Whittingham after the end of the Transformation and Resources Policy and Performance Committee. Despite reading my letter, he felt confident that the call-in would be decided by the Coordinating Committee on the 5th February.

Strangely a new meeting of the Families and Wellbeing Policy and Performance Committee appears in the calendar for the 6th February, however as no agenda has been published I cannot say whether this is related to the call in.

Jenmaleo,
134 Boundary Road,
Bidston,
Wirral,
CH43 7PH

29th January 2014

RE: Lyndale School call in

Dear Cllr Whittingham,
I notice that a meeting of the Coordinating Committee is scheduled on the 5th February to consider the Lyndale School call in.

The Education (Parent Governor Representatives) Regulations 1999 require each “relevant committee” of Wirral Council to have between 2-5 parent governor representatives with voting rights.

“Relevant committee” is defined as a committee that discharges any functions conferred on the authority through it being a local education authority. The Coordinating Committee has no such parent governor representative on it, therefore why is this call in not being decided by the Families and Wellbeing Policy and Performance Committee?

I would appreciate an answer to this point as soon as possible. My email address is john.brace@gmail.com .

Yours sincerely,

John Brace

So far at the time of writing this (on the afternoon of the 30th January) I have not yet received a reply.

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When is a call in meeting not a call in meeting? When it’s adjourned…

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Councillors agree to adjourn Lyndale School call in meeting

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The reasons why Wirral Council’s Lyndale School call in is being delayed

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7 invoices during Wirral Council’s “spending freeze” are they all essential spending?

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Is the Lyndale School call in going to the wrong Wirral Council committee?

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