Legal advice from Surjit Tour to 62 Wirral Council councillors on Lyndale School matter
Legal advice from Surjit Tour to 62 Wirral Council councillors on Lyndale School matter
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 this is a copy of the multi page legal advice written by Surjit Tour on the 11th July 2014 and distribute to all 62 councillors present at the Council meeting on 14th July 2014 on the Lyndale School motion.
This was provided (rather surprisingly to me as it must mark a change from the past towards more openness and transparency) in response to a Freedom of Information Act request of mine made on the 14th August 2014.
In view of the Notice of Motion relating to The Lyndale School being debated at Council on 14 July 2014, I have set out below some advice for your consideration in relation to the issues of ‘Pre-determination’, ‘Pre-disposition’ and ‘Bias’ given the significance and high profile nature of this particular subject matter.
This Note is intended as guidance only and provided to help you in your consideration of these issues in the context of The Lyndale School Notice of Motion arising at Council on 14 July and thereafter.
Pre-determination and Pre-disposition
Pre-determination is defined as:
“occurring when a Member has fixed views on a matter and retains a closed mind when it comes to making a determination”.
Pre-disposition is defined as:
“a Member being open to the possibility that, however unlikely, they will hear argument during the debate about the issue that will change their mind about how they intend to vote. As long as they are willing to keep an open mind about the issue they are entitled to take part in any vote on it”.
First – the behaviour complained of has to be relevant to the issue.
Second – the situation has to be one where a notional fair-minded and well-informed observer, looking objectively at all circumstances, would consider that there is a real risk that the decision maker has refused even to consider a relevant argument or would refuse to consider a new argument.
In summary, there are no restrictions on a Member holding a provisional view on an issue (pre-disposition) but there is a problem if he/she acts with a closed mind on a subject (pre-determination).
The pre-disposition can be strong and can be publicly voiced. It might be in favour of or against a particular point. The expressing of an intention to vote in a particular way before a meeting (pre-determination) is not the same as when a Member makes it clear he/she is willing to listen to views of all sides before deciding on how to vote (pre-disposition).
Pre-disposition in decision making is fine.
Whereas, decisions made by Members later judged to have pre-determined views have been quashed by way of judicial review.
Bias
Bias is defined as:
‘a particular tendency or inclination, especially one that prevents impartial consideration of a question; prejudice’.
‘…the question is whether the fair minded and informed observer, having considered the facts would conclude that there was a real possibility that the tribunal was biased.’
It is therefore important that each Member considers his/her stance from the position of a ‘reasonable onlooker’ and decides whether there would be or could be the appearance of bias.
Only you can say whether you are biased or not.
Localism Act 2012
Section 25 of the Localism Act states that a Member should not be regarded as having a closed mind simply because he/she has previously said/or acted in a way that may have directly or indirectly indicated the view he/she may take in relation to a matter.
Section 25 does not attempt to change case law in respect of pre-determination and bias, but it has attempted to clarify it.
The section applies if there is an issue about the validity of a decision, as a result of an “allegation of bias or pre-determination”, or “otherwise” and it is relevant to that issue whether the decision maker, or any of the decision makers, had or appeared to have had a closed mind (to any extent) when making the decision. Thus it is drafted so as to catch as many cases as possible in which an allegation of pre-determination might be made which might affect the validity of a decision.
Section 25 catches allegations of actual, and apparent, pre-determination (however tenuous).
The provision is also widely phrased in another sense. It applies to views not just about the subject matter of the decision in question, but to anything a Member has done which might show, directly, or indirectly, what view he/she takes, or would take, or might take, about any matter which is relevant to the decision.
The explanatory notes to the Localism Act 2011 in relation to section 25 state that ‘Predetermination occurs where someone has a closed mind, with the effect that they are unable to apply their judgement fully and properly to an issue requiring a decision.
Section 25 is set out on pages 4 and 5 below for your reference.
5. Summary
In summary, Members are asked to consider the above advice when considering all items of Council business requiring Members to make a decision; however particularly so in relation to the Notice of Motion re: The Lyndale School.
Members are aware that no firm/final decision has been taken by the Administration in relation to The Lyndale School and therefore the Council’s Executive decision making arrangements have yet to be administered and concluded. These arrangements also include options that are still relevant to non-executive Members and accordingly you are advised to consider the implications/impact of pre-determination, pre-disposition and bias on the decision making arrangements relevant to this subject matter.
If you have any queries concerning this matter, please do not hesitate to contact me.
Kind regards
Surjit Tour
Head of Legal & Member Services
and Monitoring Officer
11 July 2014
LOCALISM ACT 2011
Section 25
(1) Subsection (2) applies if—
(a) as a result of an allegation of bias or predetermination, or otherwise, there is an issue about the validity of a decision of a relevant authority, and
(b) it is relevant to that issue whether the decision-maker, or any of the decision-makers, had or appeared to have had a closed mind (to any extent) when making the decision.
(2) A decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because—
(a) the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and
(b) the matter was relevant to the decision.
(3) Subsection (2) applies in relation to a decision-maker only if that decision-maker—
(a) is a member (whether elected or not) of the relevant authority, or
(b) is a co-opted member of that authority.
(4) In this section—
“co-opted member”, in relation to a relevant authority, means a person who is not a member of the authority but who—
(a) is a member of any committee or sub-committee of the authority, or
(b) is a member of, and represents the authority on, any joint committee or joint sub-committee of the authority, and who is entitled to vote on any question which falls to be decided a any meeting of the committee or sub-committee;
“decision”, in relation to a relevant authority, means a decision made in discharging functions of the authority, functions of the authority’s executive, functions of a committee of the authority or functions of an officer of the authority (including decisions made in the discharge of any of those functions otherwise than by the person to whom the function was originally given);
“elected mayor” has the meaning given by section 9H or 39 of the Local Government Act 2000;
“member”—
(a) in relation to the Greater London Authority, means the Mayor of London or a London Assembly member, and
(b) in relation to a county council, district council, county borough council or London borough council, includes an elected mayor of the council;
“relevant authority” means—
(a) a county council,
(b) a district council,
(c) a county borough council,
(d) a London borough council,
(e) the Common Council of the City of London,
(f) the Greater London Authority,
(g) a National Park authority,
(h) the Broads Authority,
(i) the Council of the Isles of Scilly,
(j) a parish council, or
(k) a community council.
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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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The 25 ways in which the Wirral Council Cabinet decision about Lyndale School is flawed
The 25 ways in which the Wirral Council Cabinet decision about Lyndale School is flawed
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
Here are my thoughts on a few aspects of the recent Cabinet decision last Thursday evening about Lyndale School.
Q1. So who was the decision with regards to Lyndale School made by?
A1. The decisions about Lyndale School were made by Cllr Phil Davies (Labour, Birkenhead and Tranmere), Cllr Tony Smith (Labour, Upton), Cllr Bernie Mooney (Labour, Liscard), Cllr Stuart Whittingham (Labour, Upton), Cllr Chris Meaden (Labour, Rock Ferry), Cllr Chris Jones (Labour, Seacombe), Cllr Adrian Jones (Labour, Seacombe), Cllr George Davies (Labour, Claughton) and Cllr Pat Hackett (Labour, New Brighton).
Q2. But that’s only 9? I thought the Cabinet had 10 councillors on it!
A2. Cllr Ann McLachlan (the tenth Cabinet Member) wasn’t present at the meeting.
Q3. So does the fact she was missing alter things?
A3. No, nine out of ten is still enough to be quorate (enough councillors there to make a decision). One less councillor means one less vote to be counted, one less person possibly speaking and therefore a shorter meeting. There is no deputy system for Cabinet Members. There was no vote held during the meeting where her vote (one way or the other) would’ve made a difference to the outcome anyway. According to an email, Councillor Ann McLachlan is “away” from 29th August 2014 to the 8th September 2014 which covers the evening this meeting was held on the 4th September 2014.
Q4. So what’s she Cabinet Member for anyway?
A4. Cllr Ann McLachlan is the Cabinet Member for Governance, Commissioning and Improvement
Q5. Sorry I’m too busy laughing that Wirral Council has a Cabinet Member for “Improvement”. You’re joking right?
A5. No, I’m not.
Q6. So what was the Cllr Phil Davies’ amendment (seconded by Cllr Bernie Mooney) to the original recommendation?
A6. The recommendation (as amended) is here. Cllr Phil Davies’ amendment to the original recommendation is as follows:
Add new additional item to recommendation after paragraph 1.2:
1.3 That the Director of Childrens’ Services to ensure that Education, Health and Care Plans for all pupils of the Lyndale School are completed by the 31st October.
As Cllr Phil Davies said at the time of proposing his amendment, “It’s really important we have them in place as soon as possible.” I am presuming here that implies 31st October 2014 rather than 31st October 2015 as he didn’t specify a year at the Cabinet meeting.
Q7. So what’s an “Education, Health and Care Plan” anyway?
A7. It’s a legal requirement on Wirral Council to produce an “EHC needs assessment” (an assessment of the educational, health care and social care needs of a child or young person) on request because of the legal requirements placed upon them by the Children and Families Act 2014 c.6 (sections 33-34, 36-60).
Q8. So who can make such a request for an EHC Plan?
A8. Either parents, the young person his or herself, a person acting on behalf of a school or a person acting on behalf of a post-16 institution.
Q9. Does Wirral Council’s Cabinet fall into one of these categories?
A9. No, but Cabinet has other legal powers to make recommendations to the Director of Childrens’ Services who is Julia Hassall if they so wish.
Q10. OK, so going back to the Cabinet decision. What is the first legal concern you have about it?
A10. Well it relates to Regulations 8-11 of SI 2012/2089.
Q11. Interesting so what are Regulations 8-11 of SI 2012/2089 about?
A11. It is about key decisions, publicity in connection with key decisions, general exception and cases of special urgency.
Q12. OK, so is the decision about Lyndale School a “key decision”?
A12. Yes, key decisions are defined in Regulation 8 as a Cabinet decision (executive refers to the Cabinet) which is defined as follows:
“8. (1) In these Regulations a “key decision” means an executive decision, which is likely–
1 (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 the decision relates; or
(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.
In determining the meaning of “significant” for the purposes of paragraph (1) the local authority must have regard to any guidance for the time being issued by the Secretary of State in accordance with section 9Q of the 2000 Act (guidance).
Q13. So do Wirral Council regard it as a “key decision”?
A13. Yes.
Q14. So what’s the problem then?
A14. Well the regulations state in relation to a key decision that “that decision must not be made” unless certain requirements in Regulations 9-11 are met.
Q15. So what are the requirements in Regulations 9-11?
A15. That Wirral Council has to either “28 clear days” before the Cabinet meeting of the 4th September 2014 both publish a document on its website (and have that document open for inspection) which states the required information outlined in 9(1)(a) to 9(1)(h), or inform Cllr Moira McLaughlin and publish a notice on its website 5 clear days before the meeting or get Cllr Moira McLaughlin’s permission that the meeting is urgent and publish a notice to that effect on its website.
Q16. So did Wirral Council publish a document 28 clear days before the meeting containing the information in 9(1)(a) to 9(1)(h)?
A16. No, however it did publish a document 28 clear days before the meeting containing information in 9(1)(a), 9(1)(b), part of 9(1)(c) and 9(1)(d).
Q17. So they didn’t publish the information required by part of 9(1)(c), 9(1)(e), 9(1)(f), 9(1)(g) and 9(1)(h)?
A17. Yes.
Q18. Did they get Cllr Moira McLaughlin’s permission and publish a notice to that effect then?
A18. No.
Q19. Did they inform Cllr Moira McLaughlin and publish a notice to that effect then?
A19. No.
Q20. So what happens then if they don’t do these things?
Q20. They’re not allowed to make the decision. The regulations are quite clear on that “the decision must not be made”. Therefore the decision is unlawful/ultra vires.
Q21. So you’re alleging the decision on Lyndale School is unlawful, but they’ll just go ahead and implement it anyway?
A21. Yes.
Q22. Are there any other grounds too on which it could be challenged?
A22. Yes. The decision was made by the wrong people.
Q23. Why’s that?
A23. It’s an education matter and they didn’t have the parent governors and Diocesan representatives as part of the Cabinet making the decision.
Q24. But I thought Cabinets didn’t have to have such people as their decisions could be “called in” to the Coordinating Committee that does?
A24. The Coordinating Committee does have parent governor representatives and a Catholic representative (as of February this year) but is missing an Anglican representative.
Q25. But does it really have to have an Anglican representative?
A25. Yes it does. It’s a legal requirement, see s.9 of the School Standards and Framework Act 1998 c.31 / s.499 of the Education Act 1996 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.
The Anglican representative has to be decided by the Diocesan Board of Education (Chester Diocese) not Wirral Council.
Q26. Well why doesn’t it have one?
A26. Well the Coordinating Committee made a recommendation to Council to add an Anglican representative on February 5th 2014. The Coordinating Committee suggested Mrs H Shoebridge and Mrs Nicola Smith as parent governors representative as well as Damien Cunningham (Catholic representative) but left the decision over who the Anglican representative would be to Council.
Council met on 25th February 2014 and chose to add Mrs H Shoebridge, Mrs Nicola Smith and Damien Cunnigham to the Coordinating Committee. An extra place for the Church of England representative was added to the committee but nobody was appointed to it.
Q27. So who proposed and seconded this motion at Council?
A27. Cllr Phil Davies proposed it and Cllr Ann McLachlan seconded it.
Q28. Well surely there was some scrutiny from the 63 councillors present as to this oversight?
A28. No, it had been a long meeting by then to decide the Budget for 2014/15 with many card votes and councillors were getting tired. 63 councillors voted unanimously to add the three named representatives to the Coordinating Committee and the extra place for the Church of England representative but failed to decide on who the representative for the latter was.
Q29. So basically they had one job to do (pick a name) and they bodged it due to a lack of scrutiny and oversight.
A29. Yes.
Q30. So what are the consequences of not having a properly constituted Coordinating Committee?
A30. The legislation is clear that if the Coordinating Committee doesn’t have the required two parent governor reps, Catholic and Anglican representatives then Cabinet has to when considering education matters (in my interpretation).
Q31. So does Cabinet have two parent governor representatives, a Catholic and an Anglican representative?
A31. No.
Q32. Are there other reasons (other than the two above) why this decision about Lyndale could be unlawful?
A32. Yes.
Q33. What are they?
A33. Well they relate to Wirral Council’s responsibilities under the Equality Act 2010 c.15, Disability Discrimination Act 1995 c.50, Disability Discrimination Act 2005 c.13 and Human Rights Act 1998 c.42. There may be others I haven’t thought of.
Q34. Wow that’s a lot! Can you be a little more detailed?
A34. S. 6(1) of the Human Rights Act 1998 c.42 in relation to Protocol 1 (Article 2) “Right to education”.
In relation to the Equality Act 2010 c.15 there would be legal concerns about Section 13, section 15, section 19, section 26, section 27, section 85, section 86, section 112, section 149, section 150 and section 158.
In relation to the Disability Discrimination Act 1995 c.50 there would be concerns about sections 19, 21, 21B, 21D, 28A, 28B, 28C, 28F and 49A.
In relation to the Disability Discrimination Act 2005 c.13 there would be concerns about sections 2 & 3.
Q35. So there are in total legal concerns about four different Acts of Parliament, two different sets of regulations comprising 25 different legal concerns?
A35. Yes.
Q36. So what’s the first step in the legal process?
A36. Someone involved in the Lyndale decision, whether staff, parents, children, a person who submitted a consultation response, attended a consultation meeting or signed the petition should write a letter to Wirral Council’s Cabinet and Wirral Council’s legal department stating that if it isn’t sorted out then court action will follow. The general protocol is that Wirral Council then have two weeks to provide a response.
Q37. And if Wirral Council says no, what happens next?
A37. It would result in multiple cases would be filed in the courts with jurisdiction to hear such matters. Two examples would be the Birkenhead County Court and Royal Courts of Justice (sometimes referred to as the High Court).
It would then be up to the courts to decide who was right and wrong in this matter if Wirral Council was in the wrong, appropriate compensation and possibly quashing of all or part of the original Cabinet decision.
Based on my past experience of such cases (which I will point out at this stage that none of this is not to be construed as legal advice) some of the many legal grounds listed above (on their own) would not be sufficient for a judicial decision to be made against Wirral Council.
Some however are stronger than others.
My opinion is based on other reported cases, being personally involved in at least one involving one of the pieces of legislation and knowing that in a civil matter it would be decided on the “balance of probablities”, that this is a highly complex and hard to predict legal matter that boils down to both subjective and objective matters, interpretation of the facts and other matters. The legislation as written opens up wide opportunity for Wirral Council to claim various defences to their actions and undoubtedly Wirral Council would hire an experienced barrister to do this.
Some alleged breaches are just purely technical and in the past the judicial viewpoint has been that caveats in the legislation provide defences to those sued. Some would depend on the judicial interpretation of the various law as there are multiple interpretations of the same words. The external costs of Wirral Council defending such a legal action could go to tens of thousands of pounds with internal legal costs possibly being a similar amount (officer time, resources etc). However the costs of bringing such an action (solicitor, barrister, court fees, postage, documentation preparation etc) would also come to a similar sum.
Obviously if the cases were won, such legal costs (if a judge agreed to it) could be claimed back from Wirral Council. It would not be something to be considered “lightly”. Cutbacks made in recent years by the government to the courts system mean that cases now take far longer than they used to. Fees for court cases have also been increased.
However if something isn’t done soon, any case (whatever its merits) would be rejected by the courts for being out of time. Judicial reviews have to be brought “promptly” (and within three months of the decision although it is not advisable to wait so long as permission will be denied). Disability discrimination cases have to be brought within six months of the action complained about. Outside of this time it is up to the Court whether they accept them or not.
It is also possible that there are legal matters that I have not contemplated that could be grounds for challenging the Cabinet decision.
The Cabinet decision could also be called in by opposition politicians once the Cabinet minutes are published in draft form. However as the Coordinating Committee does not have an Anglican representative it would have to again refer a recommendation to a future meeting of the Council and then adjourn its meeting until after Council has decided. Pending legal action would also possibly complicate the call in process (which would not be quick).
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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.
</UL
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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