Why did Wirral Council have to pay back £255,177.21 after overcharging fees for information requests?
Why did Wirral Council have to pay back £255,177.21 after overcharging fees for information requests?
The author of this piece is the Appellant in a First-tier Tribunal case in which Wirral Council is Second Respondent.
Below this story is an invoice Wirral Council paid to Bevan Brittan (who are lawyers) which was for disbursements.
In layman’s terms that means money that Bevan Brittan was dispersing on Wirral Council’s behalf which totalled £255,177.21.
This was to settle an overcharging issue involving fees Wirral Council had charged in the past to those making EIR [Environmental Information Regulations 2004] requests.
In 2012 Leeds City Council appealed two ICO decision notices (FER0372970 and FER0354510) to the First-tier Tribunal over whether Leeds City Council could levy a £22.50 charge over processing CON29 forms (a form used in conveyancing by property search businesses to do checks about information held by the local council).
After a three-day First-tier Tribunal hearing in February 2013, the appeal of Leeds City Council was dismissed in March 2013 and the decision found the charges had been unlawful.
Firstly Leeds City Council should’ve published a list of charges before charging and secondly they were only allowed to cover certain costs involved and not set a flat rate charge.
Moving to Wirral Council, the £255,177 in disbursements below paid by Wirral Council is to (presumably) refund various organisations that had been overcharged by Wirral Council following the First-tier Tribunal decision in March 2013 (although this decision was later appealed and another similar case asked for an opinion by the Court of Justice of the European Union).
However that is just the disbursements (£255,177), the legal costs to Bevan Brittan will come to more than this amount.
In the "old days" at Wirral Council this sort of amount of money would have to be signed off by politicians, however I don’t remember a decision or report that explicitly mentioned this issue in the last 12 months. Maybe I missed something?
The invoice below was unearthed by myself during the 30 day working period during the 2015/16 audit, which I requested because of its size.
Certainly it raises a lot of questions as to whether this has been remedied, not just paying back what was overcharged, but making sure the charges are lawful going forward.
Maybe this is what Wirral Council means when they state, “It is about having a private sector head with a public sector heart.”
187 Bevan Brittan Wirral Council 25th June 2015 £255177 21 APPS Settlement
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A Appendices as Referred to in the Report
B Equality and Human Rights Commission Letter Dated 29 December 2010
C First Improvement Plan
D Care Quality Commission Inspection Report
E Charging Policy for Supported Living Services
F Documents Relating to 27 Balls Road
G Standards for England Decision Notices Cllr Pat Williams, Cllr Moira McLaughlin, Cllr Denise Roberts and former Cllr Ann Bridson
H Documents Relating to Reimbursement Claims
I Emails Relating to Supported Living Contracts
J Documents Relating to Service Provider 2
K Documents Relating to Service Provider 3
L Medical Information Relating to Martin Morton (MEDICAL IN CONFIDENCE)
M Documents Relating to Service Provider 4
N Minutes of Adult Protection Strategy Meeting Relating to Service Provider 4
O Documents Relating to the Safeguarding Adults Unit
P Minutes of the DASS Monitoring & Development Sub Group Meeting Held on the 11 December 2008
Q Employment Dates for WMBC Employees
A brief explanation about some of the acronyms used above. DASS refers to Department of Adult Social Services and WMBC to Wirral Metropolitan Borough Council. Service Provider 2 was Assisted Living Services (ALS), Service Provider 3 was Salisbury Independent Living Services (SIL) and Service Provider 4 was Options for Living according to this key to the terms used in the Anna Klonowski Associates report.
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The answer given by Graham Burgess (unfortunately he didn’t give a separate answer for each appendix) and starts at 6:12 in the video above was, “Just a response to the first question which relates to a whole series of appendices to the AKA report.
Our view is that all those appendices actually contain very sensitive personal information and to release those appendices would be in breach of data protection and also the duty we have to individuals that gave us information in confidence or relating to their own personal, medical or financial circumstances. Therefore it’s our view that it would be inappropriate to release those documents as they contain a whole host of sensitive information.
Clearly these matters can be tested, if people wish to test our view, by FOIs and the Information Commissioner but so far our position has been and has not been challenged in respect of those appendices. As you can see from some of them anyway clearly showing they do contain very sensitive personal information.”
Joyce Redfearn, Chair of the Improvement Board said, “I think that was recognised within the question certainly in terms of one of the appendices.”
Cllr Jeff Green, Leader of the Conservative Group said, “Yeah, can I just check with the Chief Executive said ‘We decided’ who the we were?”
Graham Burgess, Chief Executive responded, “It’s err the Council. I’ve no doubt said the Council.”
John Brace said, “Sorry, as I’m entitled to a supplementary on that. In relation to P in that list which is the minutes of the DASS Monitoring & Development Sub Group Meeting. I know that there were councillors present at that one and that was used as a justification that councillors had signed off on the special charging policy. So if you released it with the other names blacked out, wouldn’t that then mean people could then have at least a bit of accountability as to who the people were who agreed to that?”
Graham Burgess responded, “Can I also say Chair, that with your agreement it would be the intention of the Council to print all these questions, to place all these questions on our website and all the answers to them as well so they can be unearthed by people who couldn’t make this meeting so they could see what was said and what we’re saying.
In respect of that errm, obviously this is a question we got at five o’clock last night which was reasonable and obviously your supplementary has just been asked now. So I’d need probably to go away and take advice on that point and we’ll give the answer both to you John personally and put the answer on the website for everybody to see. Certainly Joyce and the Improvement Board will take that into account when they write the final report.”
Joyce Redfearn said, “So thank you for the particular question, it was really helpful.”
Below is the first appendix I asked to be published, appendix B (Equality and Human Rights Commission Letter Dated 29 December 2010) supplied by Paul Cardin (not Wirral Council), who has further information on some of the background to the letter in a blog post headlined “The Saga of DLA Piper – can the truth finally be allowed to emerge? Er, not yet…”. You can click on the image of the letter for a larger image, but as search engines can’t spider images, the text of the letter is also included below it.
Equality and
Human Rights
Commission
equalityhumanrights.com
29 December 2010
Angela Eagle MP
House of Commons
London
SW1A 0AA
Dear Ms Eagle Mr Paul Cardin
In response to your letter of 9 November 2010, in which you outline Mr. Cardin’s concerns that the overcharging of disabled residents amounted to discrimination.
I do not agree with the conclusions drawn by the Council’s Director of Law namely that discrimination did not occur because the residents were not overcharged for reasons relating to disability.
Current discrimination law and supporting case law clearly establish that motive and intent are irrelevant to this issue. The facts are that disabled people were subject to unlawful levels of charging (whether or not the cause was maladministration).
It is therefore the opinion of the Commission that Mr. Cardin’s concerns should be included in the Inquiry, in order to identify whether there are other issues or systemic problems that need to be addressed.
Furthermore inclusion of Mr. Cardin’s concerns in the Inquiry will assist the Local Authority in communicating their commitment to fully investigating this matter.
Yours sincerely
Mike Smith
Chair of the Disability Committee
Equality and Human Rights Commission
3 More London Riverside
Tooley Street
London
SE1 2RG
Tel: 020 3117 0235
Fax: 020 7407 7557
info@equalityhumanrights.com
The Equality and Human Rights Commission was established by the Equality Act 2006 as the Commission for Equality and Human Rights
So going through the list of reasons Graham Burgess gave for not publishing appendices such as these.
1. Does it contain “very sensitive personal information”?
No, it doesn’t. It does contain Paul Cardin’s name and if Wirral Council wished to protect his privacy it could easily have been released the letter with his name blacked out. However I had Paul Cardin’s permission to republish the letter without any redactions.
2. Would it be a breach of the data protection legislation for Wirral Council to release and publish such a letter?
In my view no (apart from the point about whether Paul Cardin’s name should be included when published or not). Wirral Council have been criticised in the past for using the spurious reason of data protection legislation to try and stop filming of their meetings so I don’t think they’re as familiar with this legislation and case law on the subject as they claim to be. My own personal experience is that I’ve previously won a case (in 2012) in the Birkenhead County Court involving a breach of the Data Protection Act 1998 where one of the two defendants was a Wirral councillor. Sadly it seems at least one Wirral councillor has very little understanding of the data protection legislation.
3. Would it breach the duty Wirral Council has to individuals that gave them information in confidence?
No, this is a letter written to Angela Eagle MP. I very much doubt that Mike Smith was told by Anna Klonowski Associates Ltd that his letter would be kept confidential or that he was providing it on these terms to Anna Klonowski’s investigation on those terms.
4. Does it relate to personal, medical or financial circumstances?
No, it does relate to overcharging but not in detail.
This however brings us to a final question which seems to be the crux of the matter.
5. Would releasing or publishing a letter from the Chair of the Disability Committee of the Equality and Human Rights Commission that states that disabled people were subject to unlawful levels of charging which amounted to discrimination, which contradicts the legal opinion of Wirral Council’s former Director of Law be something that would be embarrassing to Wirral Council? The answer to that one is yes. As usual comments on this matter are appreciated.
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Council (Extraordinary) (Wirral Council) 30th April 2013 | Revisions to the Constitution | Cllr Foulkes ” it was the committee system that actually put in the policies that led to the overcharging within the Klonowski report”
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Council (Extraordinary) (Wirral Council) 30th April 2013 | Revisions to the Constitution | Cllr Foulkes “it was the committee system that actually put in the policies that led to the overcharging within the Klonowski report”
Cllr Foulkes thanked the Mayor for his introduction. He said “This is actually one of the times we’ll have a proper debate”. He said that the other two parties (Conservative and the Lib Dems) wanted effectively no change to the constitution. Cllr Foulkes said if they’d genuinely wanted to change the constitution they could’ve sat down with their mentors and brought forward proposals. He said the only person who’d done any work on it was the Council Leader [Cllr Phil Davies].
He said that Cllr Green had the audacity to talk about the brown bin tax, he [Cllr Green] had had the opportunity to move an objection at Budget Council but hadn’t do so. Cllr Foulkes said that Cllr Green had been in power along with Cllr Harney and he asked did they take the Council to Shrangri-La? He answered, “No they didn’t. They had their chance at the time, they had the opportunity, but did not do so.”
Cllr Foulkes said, “I’m going to get lectures tonight about getting rid of two committees, one of them is around Adult Social Services and adult safeguarding. We had a training session on Monday night on adult safeguarding, a very informative one, all about how the restructures, how the Council’s delivering it, the staff, the people, one event. Who turned up? How many Conservative Members [councillors] turned up to that training session? How many? Not one, not one, sadly I don’t know what’s going on within the Liberal Democrat Group, we’ve read the headlines about it, I don’t know what was going on there, but none of those turned up and sadly I have to say only five Members [councillors] turned up and well, gladly they were all Labour Members [councillors] who bothered to turn up. If that’s the measure of the all party contribution to learning about safeguarding then we still have some way to go.”
He continued, “It can be enshrined in the year’s work or the work program of the new committee that will take over that and there are lessons to be learnt for combining looking at children’s safeguarding and adult safeguarding. That is a lesson that was learnt from the past.”
Cllr Foulkes also said, “I will remind this Council though, it was the committee system that actually put in the policies that led to the overcharging within the Klonowski report. It was the committee system that made that decision. If you think the committee system is foolproof it ain’t. If you think the Cabinet system is foolproof it isn’t.”
He said, “What I am shocked at is the lack of engagement by certain senior Members [councillors] in the process we have gone through. We’ve been to the Floral Pavillion and the atmosphere is better than in this Chamber.” … “We have a training mafia who are apparently monitoring us and making criticisms of us going to training sessions.” … “It maybe that we can have localised planning decisions, it maybe that we can have localised licensing decisions…”.
