Tag: PFI

The first 17 pages of Wirral Council's contract with Wirral Schools Services Limited

The first 17 pages of Wirral Council’s contract with Wirral Schools Services Limited

The first 17 pages of Wirral Council’s contract with Wirral Schools Services Limited

                           

Edited 13/11/2014 to correct “Wirral School Services Limited” to “Wirral Schools Services Limited”.

Below is the first 17 A4 pages of Wirral Council’s contract with Wirral Schools Services Limited. I requested it as part of the 2013/14 audit. Sadly it’s so long I’ll probably just have to scan the rest of it in or OCR it.

There are a further 114 pages in this section.

Private & Confidential

Dated 9th September 2004

WIRRAL BOROUGH COUNCIL (1)
WIRRAL SCHOOLS SERVICES LIMITED (2)

===================================================================================================================
DEED OF AMENDMENT AND RESTATEMENT relating to Wirral Schools PFI Project
===================================================================================================================

ADDLESHAW GODDARD

Contents
Clause Page

1 Interpretation ......................................... 1
2 Effective Date ......................................... 1
3 Amendment and restatement .............................. 2
4 Confirmation ........................................... 2
5 Variations, amendments and payments .................... 2
6 Release by the Authority ............................... 4
7 Release by Project Co .................................. 4
8 Governing law and dispute resolution ................... 4

Schedule

1. Conditions ............................................ 5
   Part 1 - Conditions to be satisfied by Project Co ..... 5
   Part 2 - Conditions to be satisfied by the Authority .. 6
2 Amendments to the Project Agreement .................... 7
3 Details of Variations referred to in clause 5.1 ........ 8
4 Schedule of Payments referred to in clause 5.2(b) ...... 9
5 Outstanding items ..................................... 10

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This Deed of Amendment and Restatement is made on the 9th day of September 2004

Between

(1) Wirral Borough Council of Town Hall, Brighton Street, Wallasey, Wirral, Merseyside CH44 8ED (Authority); and (signature)

(2) Wirral Schools Services Limited, a company incorporated under the laws of England and Wales with registered number 4115637 whose registered office is at Frogmore Park, Walton-at-Stowe, Hertford SG14 3RU (Project Co).

Whereas

(A) The Authority has appointed Project Co under an agreement dated 27 March 2001 (Project Agreement) to finance, design and construct and to provide certain services in respect of certain schools in Wirral.

(B) The Authority and Project Co have agreed to vary the Project Agreement in the manner hereinafter appearing and to agree certain variations to the Project as hereinafter described.

It is agreed

1 Interpretation

1.1 In this Deed, but save as provided for by clause 1.2, the following expressions shall bear the following meanings:

D&B Deed of Amendment and Restatement means a deed of that name (or about) the same date as this Deed between Project Co and the D&B Contractor amending and restating the D&B Contract

Effective Date means the date upon which the parties confirm to each other in writing pursuant to clause 2.1 that the conditions set out in schedule 1 have been satisfied or waived

Revised Base Case Financial Model means the revision of the Base Case Financial Model as at the Effective Date in the Agreed Form

Subcontract Deeds of Amendment and Restatement means:

(a) the D&B Deed of Amendment and Restatement; and
(b) the Support Services Deed of Amendment and Restatement

Support Services Deed of Amendment and Restatement means a deed of that name of (or about) the same date as this Deed between Project Co and the Support Services Manager amending and restating the Support Services Management Agreement

1.2 Unless stated to the contrary in this Deed, words and phrases used in this Deed with initial capital letters but not defined herein shall have the meanings ascribed to them in the Project Agreement.

1.3 Unless stated to the contrary, references in this Deed to any clause or schedule or appendix are references to such clause or schedule or appendix of or to this Deed.

1.4 Words importing the single number only include the plural number and vice versa.

2 Effective Date

2.1 The provisions of clauses 3, 5 (save for the acknowledgements set out in clauses 5.2(b) and 5.2(d)), 6 and 7 shall have no effect unless and until:

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(a) the Authority shall have confirmed in writing to Project Co that all of the conditions set out in part 1 of schedule 1 shall have been satisfied or waived; and

(b) Project Co shall have confirmed in writing to the Authority that all of the conditions set out in part 2 of schedule 1 shall have been satisfied or waived.

2.2 Each of the Authority and Project Co shall use their respective best endeavours to procure that the conditions set out in clause 2.1 are satisfied as soon as reasonably practicable following the date of this Deed, provided always that, if the Effective Date has not occurred on or before 31 August 24 September 2004, either party shall be entitled to terminate this Deed at any time thereafter upon giving written notice to the other party. (signature)

2.3 Without prejudice to any antecedent breaches of this Deed, if either party terminates this Deed pursuant to clause 2.2 then the Authority shall be entitled to recover in full from Project Co within 5 Working Days of the date of receipt of any notice served pursuant to clause 2.2 the amounts paid by the Authority to Project Co in connection with this Deed prior to the date of termination as set out in clause 5.2 and neither party shall be entitled to bring any claim against the other party as a result of such termination.

2.4 The Authority shall, within 10 Working Days after the Effective Date, deliver to Project Co a duly executed certificate issued pursuant to the Local Government (Contracts) Act 1997 in relation to this Deed.

2.5 Project Co shall procure the delivery by Liberty Mutual Insurance Company (UK) Limited, within 10 Working Days after the Effective Date, of written confirmation of its consent to the D&B Deed of Amendment and Restatement and that the D&B Performance Bond and Retention Bond (in each case, as defined in the D&B Contract) remain effective.

3 Amendment and restatement

With effect from the Effective Date the Project Agreement shall be amended and restated so as to give effect to the amendments set out in schedule 2. The parties agree that the amendments to the Project Agreement and Schedules set out in schedule 2 constitute the only pages of the Project Agreement and Schedules where changes to the text have been agreed between the parties.

4 Confirmation

The parties confirm that the Project Agreement remains in full force and effect save as amended by this Deed.

5 Variations, amendments and payments

5.1 The parties agree that:

(a) as a result of the matters contained in or referred to in this Deed, namely the carrying out of works by Project Co (whether before or after the Effective Date):

(i) required to be undertaken for the removal of Asbestos at the Facilities within the period prior to the last Actual Date of Completion to occur; and

(ii) as a result of Variations instructed and/or requested in writing by the Authority pursuant to Clause 32 of the Project Agreement up to and including 7 June 2004,

the Design and Build Periods in respect of the Sites have been extended as set out in Part 3 of Schedule 3 to the Project Agreement (as amended and restated in accordance with this Deed); and

(b) without prejudice to the Authority’s entitlement to request Variations pursuant to the Project Agreement, Project Co shall carry out such variations to the Works as are nominated by the Authority in its discretion up to (but not exceeding) the value of

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£115,000 (unindexed) which variations Project Co shall carry out and complete at no cost to the Authority; and

(c) Project Co shall shall carry out and complete the Variations set out in schedule 3 to this Deed by the respective dates set out against each such Variation in schedule 3 (and, to avoid doubt, such Variations shall be carried out and completed at no additional cost to the Authority),

provided always that:

(i) the Authority shall be fully responsible for any planning or judicial review risk associated with the carrying out of any Variation referred to in this clause 5.1(c); and

(ii) the Authority shall be entitled to deduct liquidated and ascertained damages (LADs) from the Services Contract Payment at a rate of £55 per Variation for each day in excess of the relevant Completion Date for which any Variation as referred to in this clause 5.1(c) is not complete.

5.2

(a) The parties acknowledge and agree that there is a difference between the Services Contract Payment set out in Part 4 of Schedule 5 to the Project Agreement and the Services Contract Payment set out in the Base Case Financial Model. In order to rectify this difference and by way of full and final settlement of the costs and expenses incurred or to be incurred by Project Co as a result of the implementation of variation works including the change in building design at Leasowe Primary and the implementation (whether before or after the Effective Date) of works to deal with Asbestos discovered in the Facilities within the period prior to the last Actual Date of Completion to occur (in accordance with Clause 16.4 of and Schedule 15 to the Project Agreement), the Authority has agreed to:

(i) change the Expiry Date to 31 July 2031 in order to enable Project Co to raise additional finance (provided always that the amount of principal taken into account in calculating Senior Debt (as shown in the Revised Base Case Financial Model) shall not increase by more than £3,000,000.00, compared with the amount of principal shown for the same date in the Base Case Financial Model, by reason of the raising of such additional finance); and

(ii) pay to Project Co the sum of £3,340,000.00, such sum to be paid in accordance with the remainder of this clause 5.2.

(b) The parties acknowledge that, of the sum referred to in clause 5.2(a)(ii), the sum of £1,800,000.00 has been paid by the Authority to Project Co (and Project Co acknowledges that it has received such amount from the Authority). The remaining sum of £1,540,000.00 shall be due and payable by the Authority to Project Co in the sums and on the dates set out in schedule 4.

(c) Project Co shall submit a valid VAT invoice to the Authority in respect of each of the amounts referred to in clause 5.2(b).

(d) Project Co acknowledges that it has received a payment of £1,186,618.10 (inclusive of VAT) from the Authority in relation to certain costs incurred by Project Co in removing Asbestos. The parties agree that a further sum of £35,000 (which represents the VAT element outstanding on a £200,000 payment on account made by the Authority) remains to be paid by the Authority to Project Co and that the Authority shall pay such amount to Project Co within 30 days of receipt of a valid VAT invoice in respect of the same.

(e) The parties agree to procure that Schedule 4 to the Project Agreement shall, not later than the last Actual Date of Completion to occur, be revised to reflect any changes to the drawings or accommodation schedules as may be necessary, whether arising

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pursuant to this Deed or otherwise, but provided always that any such revision shall not result in any increase to the Services Contract Payment as set out in the Base Case Financial Model.

(f) and (g) – please see continuation sheet overleaf (signature)

Outstanding items

5.3 In consideration of receipt of the amounts referred to in clause 5.2, Project Co shall carry out and complete the works set out in schedule 5 (“Outstanding Items“) and, to avoid doubt, Project Co shall not be entitled to any additional payment in respect of such works.

6 Release by the Authority

6.1 On and with effect from the Effective Date:

(a) the Authority irrevocably waives and releases to Project Co any claim or Losses it may have or which may have arisen consequent upon any breach or alleged breach of any obligation of Project Co contained in the Project Agreement arising prior to the Effective Date in connection with the matters referred to in clause 5.1(a) including without limitation in relation to the issue of any Non-Completion Certificate; and

(b) the Authority irrevocably and unconditionally provides its consent, insofar as such consent may be necessary or required to be given under the Project Agreement, to any matters contained in or referred to in this Deed.

7 Release by Project Co

7.1 On and with effect from the Effective Date Project Co irrevocably waives and releases to the Authority any claim or Losses it may have or which may have arisen consequent upon any breach or alleged breach of any obligation of the Authority contained in the Project Agreement arising prior to the Effective Date in connection with the matters referred to in clause 5.1(a) including without limitation to the issue of any Non-Completion Certificate. Without prejudice to the foregoing, Project Co acknowledges that:

(a) the amendment to the Expiry Date referred to in clause 5.2(a)(i);

(b) the payment of the financial amounts shown in clause 5.2; and

(c) the amendments made to the Schedule of Key Dates referred to in clause 5.1(a),

shall constitute Project Co’s sole compensation in respect of the matters contained within this Deed, including without limitation any claim against the Authority under Clause 16.4 of the Project Agreement or otherwise for costs, expenses, losses, prolongation or disruption expenses or loss of profit arising from any works (whether such works are carried out before or after the Effective Date) required to deal with Asbestos discovered at the Facilities within the period prior to the last Actual Date of Completion to occur.

8 Governing law and dispute resolution

8.1 The law of this Deed is English law.

8.2 Any dispute arising out of or in connection with this Deed shall be resolved in accordance with the procedure set out in Clause 49 (Dispute Resolution Procedure) of the Project Agreement. Subject as aforesaid, the parties agree that the courts of England and Wales shall have exclusive jurisdiction to hear and settle any action, suit, proceeding or dispute in connection with this Deed and irrevocably submit to the jurisdiction of those courts.

In Witness the parties have caused this Deed to be duly executed on the date set out above.

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(f) The parties acknowledge that the extension to the Contract Term hereby agreed (the “Contract Extension“) will enable Project co to raise additional funding to facilitate Project Co’s performance of its obligations under the Project Agreement and this Deed, and the Authority agrees that on the occasion of the first financing of the Contract Extension (whether or not the Contract Extension is financed for the first time as part of a Refinancing (as that term is defined in clause 4.1 of the Project Agreement) or otherwise) all sums thereby raised up to (but not exceeding) the sum of three million pounds (£3,000,000.00) and arising solely out of the Contract Extension shall accrue solely to Project Co provided that (for the avoidance of doubt) that parties hereto agree that on any Refinancing (as that term is defined in clause 4.1 of the Project Agreement) taking place after the first financing of the Contract Extension as aforesaid the provisions of clause 4.1 of and Schedule 2 Part 8 (Rules for Refinancing) to the Project Agreement shall apply in full to the Contract Term as hereby extended.

(g) For the purposes of clause 4.1 of the Project Agreement, the Authority hereby grants its consent to the first financing of the Contract Extension (but not further or otherwise). (signature)

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Schedule 1
Conditions
Part 1 – Conditions to be satisfied by Project Co

Delivery by Project Co to the Authority of the documents listed below in form and substance satisfactory to the Authority. Where listed as a duly certified copy, the document must be certified by a director or the secretary of Project Co as being a true copy:

1. A copy, duly certified, of minutes of a meeting of the board of directors of Project Co evidencing:

(a) consideration by the directors of:

(i) a final draft of this Deed and the Subcontract Deeds of Amendment and Restatement;

(ii) Project Co’s rights and obligations under this Deed and the Subcontract Deeds of Amendment and Restatement; and

(iii) any limit or restriction on any of Project Co’s powers or any limit or restriction on the rights or ability of the directors to exercise any of Project Co’s powers; and

(b) a resolution of the board of directors approving the execution, delivery and performance by Project Co of this Deed and the Subcontract Deeds of Amendment and Restatement and authorising a specific person or persons to execute and deliver this Deed and the Subcontract Deeds of Amendment and Restatement and sign and despatch all notices and other communications required or permitted to be given by Project Co under this Deed and the Subcontract Deeds of Amendment and Restatement.

2. A specimen of the signature of each person authorised by Project Co to execute this Deed and the Subcontract Deeds of Amendment and Restatement and to sign and despatch all notices and other communications required or permitted to be given by Project Co thereunder.

3. A copy, duly certified, of each of this Deed and the Subcontract Deeds of Amendment and Restatement.

4. The Revised Base Case Financial Model.

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Part 2 – Conditions to be satisfied by the Authority

Delivery by the Authority to Project Co of the documents listed below all in form and substance satisfactory to Project Co:

1. Copies of such (if any) of the Direct Agreements as may be required by the Lenders to be executed by the Authority, executed by the Authority (but not, for the avoidance of doubt, the other parties to the Direct Agreements); and

2. Certified copies of the appropriate minute of the Authority which evidences the delegated authority of the officer signing this Deed.

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Schedule 2
Amendments to the Project Agreement

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CONFORMED COPY

DATED       27 March 2001

(1) WIRRAL BOROUGH COUNCIL

(2) WIRRAL SCHO OLSSCHOOLS SERVICES LIMITED

(signature)

===================================================================================================================

PROJECT AGREEMENT

Amended and Restated pursuant to a Deed of Amendment and Restatement dated 9th September 2004

===================================================================================================================

ROWE & MAW
20 Black Friars Lane
London EC4V 6HD

Tel: 020 7248 4282
Fax: 020 7248 2009

Ref: 617/343/476/27909.1

CONTENTS

CLAUSE SUBJECT MATTER PAGE

1. Definitions and Interpretation 2
2. Conditions Precedent 4344
3. Ancillary Documents 4647
4. Funding Arrangements, Direct Agreements, Guarantees and Prohibition on Diversification 4748
5. Term 5051
6. Planning 5051
7. Works 5657
8. Project Programme and Extensions of Time 5961
9. Design Development 6264
10. Standards of Design and Workmanship 6364
11. D & B Contract 6365
12. Decant Programme 6465
13. Care of the Sites and Reinstatement 6466
14. Inspection and Completion 6567
15. CDM Regulations 6870
16. Defects 6971
17. Fossils and Antiquities 7072
18. Services and Phase-in 7274
19. Maintenance 7678
20. Utility Services and Catering 8284
21. Value for Money Testing and Best Value 8587
22. Equipment and Materials 8789
23. Payments to Project Co 9395
24. Performance Regime 98100
25. Provisions Relating to Land 101103
26. Authority Access 103105
27. Site Licences and Leases 104106
28. Obligations of Project Co in Respect of the Sites and the Authority’s Obligations in Respect of Land 107109
29. Rates, Taxes and Outgoings 109111
30. Quality Assurance 110112
31. Reports and Records 112114
32. Variations 117119
33. Change in Law 130132
34. Indemnity and Liability Limitation 132134
35. Environmental Liability 138140
36. Insurance 139141
37. Events of Default and Termination 146148
38. Compensation on Termination 151153
39. Consequential Arrangements on Termination 155157
40. Representatives 159161
41. Sub-Contracting 161163

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42. Assignment 162164
43. Change of Control 163165
44. Force Majeure 164166
45. Warranties and Disclaimers 166168
46. Employees 161171
47. Intellectual Property and Data 179181
48. Confidentiality and Publicity 181183
49. Disputes 185187
50. Agency 185187
51. Personal Data 186188
52. Corrupt Gifts and Payments of Compensation 188190
53. Health and Safety, Site Rules and Occupiers Liability 190192
54. Miscellaneous 192194
55. Governing Law and Jurisdiction 196198

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INDEX OF SCHEDULES

SCHEDULE HEADING
SCHEDULE 1 LAND
Part 1 Bebington Headlease
Part 2 Hilbre Headlease
Part 3 Park High Headlease
Part 4 Prenton High Headlease
Part 5 South Wirral High Headlease
Part 6 Wallasey Headlease
Part 7 Not used
Part 8 Weatherhead Headlease
Part 9 Wirral Girls Headlease
Part 10 Bebington Underlease
Part 11 Hilbre Underlease
Part 12 Park High Underlease
Part 13 Prenton High Underlease
Part 14 South Wirral High Underlease
Part 15 Wallasey Underlease
Part 16 Not used
Part 17 Weatherhead Underlease
Part 18 Wirral Girls Underlease
Part 19 Plans

SCHEDULE 2 FINANCIAL MATTERS
Part 1 Lenders’ Direct Agreement
Part 2 The Council’s Design and Building Contract Direct Agreement
Part 3 The Council’s Support Services Management Direct Agreement
Part 4 Design and Building Contract Performance Guarantee
Part 5 Support Services Management Agreement Performance Guarantee
Part 6 Initial Senior Funding Agreements
Part 7 Other Initial Funding Agreements
Part 8 Rules for Refinancing

SCHEDULE 3 WORKS

Part 1 Design Development Procedure
Part 2 Prohibited Materials

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Part 3 Schedule of Key Dates
Part 4 Outline Design Documents
Part 5 The Completion Standards
Part 6 Decant Programme Methodology
Appendix 1 Decant Programme: Park High
Appendix 2 Decant: Further Obligations
Part 7 Handback Requirements
Part 8 Project Programme
Part 9 Construction Site Rules
Part 10 Handback Survey
SCHEDULE 4 PAYMENTS
Part 1 Definitions
Part 2 Services Contract Payment
Part 3 Performance Deduction Look-up Table
Part 4 Table of Service Units per School
Part 5 Monitoring
Part 6 Utility Services
Part 7 Third Part Use
Part 7A Catering
Part 8 Value for Money Testing
Appendix 1 Form of Performance and Payment Report
SCHEDULE 5 ACCOMMODATION SERVICES OUTPUT SPECIFICATION
SCHEDULE 6 SUPPORT SERVICES OUTPUT SPECIFICATION
Part 1 Building and Asset Maintenance Output Specification
Part 2 Support Service Requirements and Performance Tables
Part 3 Service Level Agreements
Part 4 Service Level Agreements Alteration Procedure
SCHEDULE 7 REPORTS AND RECORDS
Part 1 Reports
Part 2 Records
SCHEDULE 8 VARIATION
Variation Notice
SCHEDULE 9 INSURANCE
Part 1 The Part I Insurance Period

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Part 2 The Part 2 Insurance Period
Appendix 1 Endorsements
Appendix 2 Broker’s Letter of Undertaking
Appendix 3 Business Interruption Insurance – the Authority’s Obligations as Insurer
Appendix 4 Schedule of Insured Parties
SCHEDULE 10 LIAISON COMMITTEE
SCHEDULE 11 COMPENSATION ON TERMINATION
Part 1 Definitions
Part 2 Project Co Default
Part 3 Authority Default
Part 4 Notice by the Authority
Part 5 Force Majeure, Uninsurability and Planning Challenge
Part 6 Corrupt Gifts
SCHEDULE 12 DISPUTE RESOLUTION
SCHEDULE 13 SENIOR REPRESENTATIVES
SCHEDULE 14 COMPENSATION EVENTS
SCHEDULE 15 METHODOLOGY FOR ASBESTOS
Appendix 1 MB Wirral Policy
Appendix 2 Asbestos Survey Risk Assessment
SCHEDULE 16 LIQUIDATED DAMAGES
SCHEDULE 17 QUALITY SYSTEMS
Part 1 Design and Build Period Quality System
Part 2 Operational Period Quality System
Appendix A Quality Policy
Appendix B Certificate of Approval
Appendix C Proposed QA Implementation Plan
Appendix D Contact Directory
Appendix E Local Procedures
SCHEDULE 18 EMPLOYEES
Part 1 Employee Information
Part 2 Terms and Conditions of Employment
SCHEDULE 19 ADMISSION AGREEMENTS AND BONDS
Part 1 Jarvis Workspace FM Limited
Part 2 Compass Group PLC

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Part 3 MTL Commercial Limited
SCHEDULE 20 STAFF SECURITY PROTOCOL
SCHEDULE 21 OPERATIONAL SITE RULES
SCHEDULE 22 DRAFT TRANSITIONAL SERVICES AGREEMENT
SCHEDULE 23 CITY LEARNING CENTRE
SCHEDULE 24 NEW MOVEABLE EQUIPMENT SCHEDULE OF RATES

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Continues at 6 more pages of the Wirral Schools Services Limited contract with Wirral Council.

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Is Lyndale School under threat just so Wirral Council can provide a further £2 million to a company that already has plenty?

Is Lyndale School under threat just so Wirral Council can provide a further £2 million to a company that already has plenty?

Is Lyndale School under threat just so Wirral Council can provide a further £2 million to a company that already has plenty?

                                             

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, Cllr Bernie Mooney and Lyndzay Roberts
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

Last Thursday morning I visited Lyndale School in Eastham. This was my first visit, although regular readers of this blog will know that I have written extensively on the topic and filmed many public meetings of Wirral Council on the many stages involving its potential closure in January 2016.

Regular readers of this blog will also know that despite promises made in February 2014 by senior officers at a call in that matters would be dealt with in a completely “open and transparent” way, that the recent 13 page letter received from Surjit Tour turned down a request for a meeting between myself and Wirral Council on this matter.

Thankfully the Lyndale School appears to be behaving in a far more “open and transparent” way than Wirral Council is!

I wanted to start this piece by describing my impressions of the school as some of my observations about a visit to Lyndale School raise further unanswered questions.

On the same plot of land as the Lyndale School is also Eastham Youth Centre. Clearly the current consultation is about the Lyndale School, however I know relatively little about this Youth Centre. Is this Youth Centre open, closed, working or threatened with closure itself? I don’t really know the answer to that question and would appreciate somebody better informed, or more closely connected to Eastham than I to leave a comment.

Moving to the Lyndale School itself, it looks from the outside like many other primary schools do on the Wirral. Unlike when I went to school in the 1980/1990s where there literally was an “open door” policy at primary schools, these days (as is common with all other schools on the Wirral now) you need to press a buzzer on an intercom system to be let in.

There is then a reception area on the right, which at the time of my visit had many stuffed toy animals on the counter. To the left is a visitors book for visitors to sign and visitors badges on which the names of visitors can be written. On the wall is also a photo of each member of staff who works there and their job title.

My personal view on the latter point, is that organisations that do such a thing, tend to be more open and transparent than those who try to hide behind a bewildering, faceless and largely unaccountable bureaucracy.

As we had both been walking up from Eastham Rake train station, someone we both knew, who lives in Eastham had been passing in their car and had kindly offered us both a lift to the Lyndale School. So we both arrived earlier than I expected, which gave me a chance to see people coming and going for a while and how things were going. Despite the pressures the Lyndale School is going through, staff were professional and the “open door” policy referred to at the call in I saw in action as one of the parents arrived while we were waiting. If a decision is made to close the Lyndale School, this is one of the matters that the parents of the children at Lyndale School have expressed concern about as they cannot see this in operation at the other schools suggested.

There is obviously a lot of trust that exists between the parents of children at Lyndale School and the staff there. Certainly there is (despite the stress the School is under because of the political issues) a lot of goodwill between the parents and staff at the school. That’s something that never appears on Wirral Council’s balance sheet as it’s something that can’t be quantified. This is part of the reason the parents of children at Lyndale School want the School to stay as it is, as they don’t see the same ethos at Lyndale School at either Stanley School or Elleray Park.

Echoing what I have heard Julia Hassall (Director of Children’s Services at Wirral Council) say many times, I will also make the following point. Some schools are closed down because they are “failing schools”. Lyndale School doesn’t fall into that category and that is not one of the reasons behind the consultations on its closure. I wish to make that as clear as I can (as has Julia Hassall at many public meetings). The view from the public can be to jump to the conclusion that schools are only threatened with closure because things at them are going pear-shaped. This is not the case at Lyndale School and I will also point out that no final decision on closure of Lyndale School has yet been made by Wirral Council’s Cabinet.

I have referred before in articles describing Lyndale School as a “hospital school” as personally I think it is probably a more accurate description of what goes on in Lyndale School. Think of the political fuss that would happen if say in the lead up to a General Election (and I’ll point out now that I know of no such plans) that there was a consultation on closing the children’s ward and the hospital school at Arrowe Park Hospital? Think of it purely from that perspective and you can perhaps see how emotional an issue it is for both the people directly involved and the wider community.

There are many new matters involving Lyndale School I could write about but instead I will explain what I was at Lyndale School for. There was a very interesting meeting of the Friends of Lyndale School Association held there which was a private meeting, so there is a limit about what I will write here about it.

However, I had better explain what and who the Friends of Lyndale School Association are. The Friends of Lyndale School Association are a small charity set up in March of this year and registered with the Charity Commission in June. Their charitable objects are:

To advance the education of pupils in the school in particular by:
developing effective relationships between the staff, parents and others associated with the school;
engaging in activities or providing facilities or equipment which support the school and advance the education of the pupils.

It’s hard to describe exactly what the Friends of Lyndale School Association is, but the closest easily understood comparison to it, is a parent-teacher association or PTA for the Lyndale School. As with all PTAs they raise money to be spent on their charitable objects and you can (if you wish) donate to them online on the webpage on Justgiving website for the Friends of Lyndale School Association.

If the Lyndale School closes, the Friends of Lyndale School Association have made it clear that any remaining funds would be donated to Claire House (which is a children’s hospice on the Wirral). The Wirral Globe are also printing interviews with the parents of Lyndale School (which if you wish to read the first three are on the Wirral Globe website starting here, continuing here and the most recent one is and I will at this stage (and I don’t often do this about someone else in the local media) thank Emma Rigby of the Wirral Globe for her reporting in the Wirral Globe of this story.

Yesterday evening there was supposed to be a meeting of all councillors at Wirral Council. However as most people probably know already a lot of public sector unions went on strike and that meeting was shifted to the evening of the 20th October 2014. One of the matters on the agenda is a minority report (no not the film Minority Report with Tom Cruise this refers to something different) but a minority report about the recent Lyndale School call in.

In fact there are five minority reports about various matters. There is one about the Lyndale School call in submitted by various councillors in the Conservative Group that you can read on Wirral Council’s website. The minority report procedure hasn’t been used for a long time and I think most people are unsure whether it’s an item that could trigger a debate or whether it would just be voted on. Had it not been for the strike yesterday, this would probably have already happened.

After the call in meeting on 2nd October 2014, the second consultation on closure of Lyndale School should’ve started as the Cabinet delegated this matter to Julia Hassall. She therefore probably knows more the timescales than I do. As far as I know (and Wirral Council’s constitution has been through a lot of changes in the past few years), a decision of a call in committee is still implemented by officers even if a minority report is submitted to the next Council meeting (which should’ve taken place yesterday evening but was I would guess put back a week because of the strike).

My concerns about the entire process in this matter over the last year and how this has all been done I’ve written about before. I am not going to repeat myself here. There are however concerns about corporate governance at Wirral Council about this matter that I haven’t expressed in public.

Personally I think it is a crying shame, that on an issue as sensitive as Lyndale School, that all political parties now represented on Wirral Council (whether Labour, Conservative, Lib Dem or Green) can’t come to an agreement (behind closed doors if need be) to pause this whole process and have a review.

Wirral Council claim that they can’t keep the Lyndale School open in 2015-16 due to a shortfall between what the Lyndale School predicts they will need and what Wirral Council is willing to give them. The shortfall will be
~£190,000.

I have written on this blog before that Wirral Council could easily find this small amount of money if they wished and move it around from existing budgets if the political will was there. In fact papers that went the Wirral Schools Forum last week showed that through reductions in this year’s budget they found ~£2 million. So where’s this money going? It’ll be put in a reserve and used next year to go to Wirral Schools Services Limited who have a PFI Schools contract for various schools (and two city learning centres) with Wirral Council as part of a ~£12 million/year contribution.

Wirral School Services Limited’s account show that for 2014 they had £1.93 million in cash assets, which is £6.33 million in assets minus their £4.39 million in liabilities.

What’s amazing is that a Labour Council, who trumpets its “socialist values” in election leaflets, it is seemingly happy to make £2 million of cuts in year to the Wirral Council’s Schools Budget for this year (which obviously need Wirral Schools Forum approval and Cabinet approval) to help plug a financial gap in the 2015-16 Schools PFI contract, but when it comes to an amount ten times smaller than that to be found no report I’ve seen so far even lists finding the money to keep Lyndale School open in 2015-16 (from such as underspends in existing budgets) as an alternative option!?

Despite the words of Wirral Council in the past that they would put vulnerable people such as the pupils of Lyndale School first, it seems that the school is under threat whilst capitalist greed gobbles up the available funds. If Wirral Council so wished, it could either end or renegotiate the Schools PFI contract. The schools system should not be run to feed the profits of private companies!!! Nor should vulnerable children have such a low priority!!! These are two of my main frustrations with the current situation.

I will repeat again, if you wish to donate to the Friends of Lyndale School Association you can here. The Justgiving website takes a 5% cut of all donations and charges £18 a month to the Friends of Lyndale School Association. However the other 95% (minus £18/month) is paid directly to them.

I know I will continue to get criticism (and I really don’t mind comments on this blog attacking me) from some quarters for how I’m reporting the Lyndale School issue, there has been however nothing so far that convinces me that all the decisions taken by Wirral Council so far have either been taken in the right way or for the right reasons. If everything was done so far “by the book” and in an “open and transparent” way, I would not be as irked by how the matter has happened as I am.

On a personal note, I realise there has been a deterioration in relations between Wirral Council and those associated with the Lyndale School. If other special schools on the Wirral think they will escape whilst Wirral Council’s focus is on Lyndale School, they will need to have a drastic rethink and not bury their heads in the sand. I will repeat here what I said at Lyndale School on Thursday.

There is a current consultation that the government is running on the draft Schools and Early Years Finance (England) Regulations 2014. These are the regulations (a type of law) that Wirral Council has to conform to when setting schools’ budgets annually.

At the moment, because of a part of the law known as the “minimum funding guarantee”, for this 2014-15 year Wirral Council could not drop school budgets such as Lyndale Schools by more than 1.5% based on what their previous year’s budget allocation was.

However the draft regulations being consulted on, whereas they (in draft form) keep the minimum funding guarantee for mainstream schools, get rid of the current minimum funding guarantee for special schools. Personally and I’m going to get quite political now, I think it is morally wrong to protect mainstream funding for mainstream schools, but at the same time allow local councils to (if they so wish) to totally change the budget (and therefore nature) of special schools which can in extreme cases ultimately force them to close. Obviously the draft regulations may be altered post consultation, but you can respond to that consultation run by the Department of Education here. That consultation closes this Friday (17th October) at 5.00pm.

If the new regulations (following consultation) abolish the existing legal protections for special school budgets, it will be perfectly legal for local councils (such as Wirral Council) to come up with a schools funding formula for 2015-16 that leads not just to the potential closure of schools such as the Lyndale School but dramatically changes the funding allocated to other special schools as the new banding system was agreed earlier this year at a call in a controversial 8:7 vote.

Wirral Council has shifted money out of the agreed budget for special schools to cross subsidise other parts of the education system, such as PFI. This is of course entirely legal if officers get the necessary approvals from the Wirral Schools Forum and others. However in other local authorities, an underspend in the special education side of matters would not be used to plug financial holes and financial instability elsewhere. Other Schools Forums take the prudent approach that underspends on the special educational needs side are put in financial reserves earmarked for that area of education.

The spare capacity such as underspends of money that was agreed should be spent in the special schools system, has instead been used to cross subsidise other parts of Wirral Council’s Schools Budget. The money however always seems to flow out of the special schools system and never back to it. Had these political decisions not been made, there would be more than enough money to keep Lyndale School open (at least for the 2015-16 year and possibly beyond). However instead the influence of a large company such as Wirral Schools Services Limited with large financial reserves has been listened to, whilst the pleas of Lyndale School parents merely to continue with what they already have, have so far been met with a lack of political will to explore alternative options and a knee jerk reaction to blame the situation on the Coalition government, the Church of England and even the Lyndale School itself, without apparently getting across to the public the personal responsibility that politicians at Wirral Council must take for each decision they make.

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Marvin the Martian returns to try to understand the incredible Lyndale School situation and the £1 million SEN budget cut

Marvin the Martian returns to try to understand the incredible Lyndale School situation and the £1 million SEN budget cut

Marvin the Martian returns to try to understand the incredible Lyndale School situation and the £1 million SEN budget cut

                                                  

Marvin the Martian from Disney's Looney Tunes
Marvin the Martian from Disney’s Looney Tunes

The below is a fictional interview with Marvin the Martian about Lyndale School. Marvin the Martian is trademarked to Warner Brothers Entertainment. Our legal team point out their trademark doesn’t actually cover its use on blogs but in case they try to argue this blog is an “entertainment service”, it isn’t, so no laughing! Yes I mean it, not even a smile! We also point out it’s not an infringing use of class 9 of this trademark as that refers to its use on goods rather than virtually.

We rely on s.30 of the Copyright, Designs and Patents Act 1988 and class this as “fair dealing” due to the acknowledgement above. As the The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 have come into force earlier this month, we’ll rely on this too and the new section 30A on parody.

JOHN BRACE: Thanks once again for agreeing to be interviewed about Lyndale School. We asked Wirral Council for a meeting about Lyndale School but they declined.

MARVIN THE MARTIAN: You’re welcome. Well that is a shame I was looking forward to finally meeting people from Wirral Council that I have seen on your video broadcasts. Why do your politicians think they can get away with making decisions like this?

JOHN BRACE: They believe they’re doing the right thing in making “difficult decisions” that are “unpopular”. Also many are what’s in “safe seats”, and many of them (if they choose to do so) will not have to face the public in an election for many years to come.

MARVIN THE MARTIAN: But they’re still subject to laws right, that meeting last Thursday the people making the decision didn’t have the required statutory guidance for decision makers which includes the SEN Improvement Test as part of the papers for that meeting?

JOHN BRACE: Well the politicians could have adjourned the meeting and received the correct documents but they chose not to. However you can’t expect politicians to know what they’re doing. They’re elected to look at things from the public perspective and rely on officer advice in such matters. Anyway preparing the papers for a meeting is an officer function in consultation with the Chair.

MARVIN THE MARTIAN: You can’t blame this on the committee services officer Lyndzay Roberts though as she only includes in the papers for the meeting what she’s been given in time for it to be published and on that subject why do they keep picking the committee services officer who is a wheelchair user for the Lyndale School meetings?

JOHN BRACE: I’m afraid I can’t read people’s minds and would prefer not to answer that question.

MARVIN THE MARTIAN: Ahh the “Lynn Wright” defence eh? How much do you get paid then?

JOHN BRACE: Not enough to be answering questions from fictional characters about difficult subjects and I’m assuming your second question is a joke! I know what I got paid last year, so does HMRC. I can estimate what I will get paid this year but as I’m on a fixed amount plus an element that is related to performance, I literally could only tell you it’s above £x,xxx/year. I’m also not sure if you mean gross or net salary as a certain proportion of my earnings I don’t get as they are paid in taxes. I have income from sources other than my salary though.

MARVIN THE MARTIAN: Ha ha! OK, I won’t pry too much! Back to Lyndale, what was decided on Thursday?

JOHN BRACE: To uphold the Cabinet decision of 4th September 2014 on a majority 9:6 vote.

MARVIN THE MARTIAN: And remind me what the Cabinet decision of 4th September 2014 was?

JOHN BRACE: Following the first consultation, to have a further second (but different) consultation on closure.

MARVIN THE MARTIAN: I thought they’d just had a consultation!

JOHN BRACE: This is a similar but different sort of consultation.

MARVIN THE MARTIAN: OK, I never realised closing down a school was made so complicated!

JOHN BRACE: A final decision on closure has not yet been made. This is just an “in principle” decision on closure.

MARVIN THE MARTIAN: And how much is this all costing?

JOHN BRACE: Who knows? The school closure/retirement costs budget for this year is £326,000. However it looks like £200,000 of that will be moved to another budget heading soon.

MARVIN THE MARTIAN: Which budget heading?

JOHN BRACE: PFI (private finance initiative).

MARVIN THE MARTIAN: Why’s that?

JOHN BRACE: Well you always have to plan for the worst and hope for the best with school closures, extra call in meetings, delays, legal challenges et cetera. Sometimes that means budget allocated goes unspent which can be used for other things.

MARVIN THE MARTIAN: So they’re not going to use a £200,000 underspend on the school closure budget to keep Lyndale open another year (costing ~£190,000)?

JOHN BRACE: No, pending a decision by the Wirral Schools Forum an underspend on the school closure budget will be spent instead next year on the ~£12 million a year PFI contract.

MARVIN THE MARTIAN: OK, so when does this second consultation on closing Lyndale School start?

JOHN BRACE: Wirral Council officers had authorisation to proceed with implementation of the Cabinet decision of 4th September 2014, once the call in ended on 2nd October 2014. This has been delegated by the Cabinet to Julia Hassall to implement.

Regulation 8 of the Openness of Local Government Bodies Regulations 2014 will require Wirral Council to publish a notice on their website shortly after Julia Hassall implements this decision. This public notice has to contain the date of the decision, a record of the decision and reasons, details of any alternative options considered and rejected and the names of any of the Cabinet that declared a conflict of interest in the decision.

MARVIN THE MARTIAN: Well how likely are Wirral Council to do that?

JOHN BRACE: They probably won’t. They always have great difficulty in complying with their legal requirements (of which there are many).There have been many decisions delegated by councillors to officers taken since these new regulations came into effect near the start of August 2014 ranging from taxi licences to other types of decision. Another part of the same regulations dealt with filming of public meetings, which thankfully settles a long running industrial relations dispute with us and them. As far as I can tell no public notice has been published by officers relating to those yet?

MARVIN THE MARTIAN: Why ever not?

JOHN BRACE: Some of the officers to whom the decisions have been delegated to make don’t have the authorisation to publish public notices on the website through the Modgov system. Also this change to legal requirements (which should’ve been implemented from August) would require a change to working practices which requires consultation with the trade unions through the HR department before implementation. Finally, in the vast majority of cases, there are either existing capacity issues with staffing or the decisions are so minor that nobody’s really apart from myself is paying that much attention whether internally or externally while more interesting things are happening and putting the necessary political pressure on to ensure these new regulations are implemented?

MARVIN THE MARTIAN: Like what is more interesting?

JOHN BRACE: Like officers’ plan to persuade the Wirral Schools Forum on Wednesday evening to make £1 million of in year cuts this year in 2014/15 to (SEN Top Ups/Independent School Fees (£600,000), statements (£200,000) and support for SEN (£200,000)).

MARVIN THE MARTIAN: And why are they proposing to cut a further £1 million from the SEN budget this year?

JOHN BRACE: So they can pay for PFI costs in 2015/16.

MARVIN THE MARTIAN: And why have PFI costs risen so much?

JOHN BRACE: Because a political decision was made a long time ago to take ~£2 million out of the PFI budget for 2015/16 and get schools to pay for it instead through budget cuts. Also the calculation in the contract bases yearly increases in how much is paid based on the RPI value in December of one year compared to the previous year then multiplied by ninety percent. That’s my simple explanation, the contract itself refers to the 90% as 0.9 and has a formula as to how the increases are calculated.

MARVIN THE MARTIAN: So if the other special schools (other than Lyndale) think they’re safe they’re not?

JOHN BRACE: Indeed, their budgets were protected this year by dropping by more than 1.5%. Based on the draft regulations circulated by the government (Schools and Early Years Finance (England) Regulations 2014) as part of the current consultation (which closes on October 17th 2014), for special school that protection (assuming the draft regulations aren’t changed) will end in 2015/16. The department for education can be emailed at 2014SchoolFinanceRegulations.Consultation@education.gsi.gov.uk about the policy side of the consultation, or consultation.unit@education.gsi.gov.uk or by telephone on 0370 000 2288 or by mail to Department for Education, Beth O’Brien, Department for Education, Great Smith Street, London SW1P 3BT. Further detail about the consultation is on the DfE website here and you can respond online to this consultation here.

However for mainstream it looks like the minimum funding guarantee of at least 98.5% of last years budget will continue in some form?

MARVIN THE MARTIAN: So because they can (or assume they can) Wirral Council will target more special schools for cuts in the future?

JOHN BRACE: Probably, but officers don’t decide that however they can recommend that. That’s ultimately decided by the Wirral Schools Forum/councillors.

MARVIN THE MARTIAN: So is the money they’re getting for schools each year, the ~£175 million they get from the government under the direct schools grant going down next year?

JOHN BRACE: No it isn’t, but a financial and purely local decision by Wirral Council has been made to withdraw the extra funding from Wirral Council that paid for the PFI affordability gap. This amounts to £600,000 this year and millions next year (2015/16). The PFI affordability gap is the total PFI expenditure minus the fixed grant minus the costs schools pay for the services under the PFI contract which is next year about £2.6 million.

MARVIN THE MARTIAN: So who was the Cabinet Member that originally agreed to this PFI contract in the first place?

JOHN BRACE: Councillor Phil Davies, the current Leader of Wirral Council.

MARVIN THE MARTIAN: Is there any way out of the contract, when does it end and can it be renegotiated?

JOHN BRACE: Yes, 2031 and yes.

MARVIN THE MARTIAN: So will they try to renegotiate to save money or terminate it?

JOHN BRACE: Probably not no, management were asked this at the last Wirral Schools Forum, however management only know what they’re told about the contract, they’re not managing it on a day to day basis. Terminating it would be expensive as there is still 17 years left to run, renegotiating would be the more likely option of the two if the political will is there.

MARVIN THE MARTIAN: So you’re saying the Wirral School Forum members asked Wirral Council officers that hadn’t actually read the contract?

JOHN BRACE: Judging by their answers probably not, managers don’t do things themselves they delegate tasks such as reading contracts and managing contracts to others, maybe not even people that are directly line managed by them but people lower down the food chain.

You can’t expect a senior manager to read such a long contract. Even if they did, it’s hundreds of pages long. It would be very hard to remember all the details unless they brought an electronic searchable version along to the Wirral Schools Forum on say a tablet computer or alternatively circulated an electronic copy to the members of the Wirral Schools Forum. I suppose as a councillor (and member of the Wirral Schools Forum) Cllr Wendy Clements could ask for a copy if she so wished.

MARVIN THE MARTIAN: So what does the PFI contract actually say about renegotiation?

JOHN BRACE: Wirral Council have to ask the provider (Wirral Schools Services Limited) about changes to the contract and be specific. Wirral Schools Services Limited then have a limited time period in which to respond stating (and I summarise here) whether they agree or not to the changes or not. If they agree they are implemented. However if there is disagreement between Wirral Council and the contractor there is a dispute resolution procedure that can be followed.

MARVIN THE MARTIAN: So are there any changes they have to agree to?

JOHN BRACE: Yes certain changes they have to agree to. For example there was a legislation change recently on free school meals for children under a certain age. As this was a legislation change, Wirral Council can ask for such changes to be implemented so that Wirral Council does not breach its legal obligations.

There are other categories of change that the contractor has to agree to too.

MARVIN THE MARTIAN: Indeed, so could Wirral Council’s legal department come up with similar changes which could result in the total cost being lowered?

JOHN BRACE: Wirral Council’s legal department has issues of its own. Also it in order to implement changes quickly it would require agreement of the contractor Wirral Schools Services Limited. Wirral Council would have to seek appropriate authorisation internally from sufficiently senior officers and if it had large budgetary implications in terms of costs or savings then also authorisation from politicians.

MARVIN THE MARTIAN: So it’s possible?

JOHN BRACE: Anything’s possible. However as the contractor is a large organisation with a turnover off the top of my head of about £62 million, although they are considerably smaller in annual yearly revenue budget than Wirral Council, Wirral Council still get scared of organisations with that sort of financial clout, as well as organisational and legal resources at their disposal.

MARVIN THE MARTIAN: Does current senior management at Wirral Council want to renegotiate the contract?

JOHN BRACE: If the Wirral Schools Forum and/or politicians in the administration asked them to they’d have to to look into the option (which would depending on the option and the savings/cost implication would affect budgets through to 2031). After negotiations, generally officers would bring back options to politicians/Wirral Schools Forum for a meeting. However the Schools PFI contract is complex, it is hard for anyone to understand easily.

If neither of those formally happen, senior management already have enough on their plate already and lack the current internal capacity as they are already negotiating a 7 year extension to a contract of a similar size (~£12 million a year) with Biffa Waste Services Limited.

MARVIN THE MARTIAN: But Biffa is in a different strategic directorate to schools!

JOHN BRACE: Indeed but there are capacity issues at the management level and across the organisation at all levels. This is due to annual leave requirements, illness, other factors and the mere practical constraints of there only ever being so many people to keep all the plates spinning up in the air at once.

MARVIN THE MARTIAN: Oh dear. So what is the likely net result to be?

JOHN BRACE: Instead of renegotiating savings on a contract, Wirral Council in the absence of either strong leadership at either the Wirral Schools Forum level or political level will probably accept the status quo and instead make in year cuts of a further £1 million to special educational needs. Officers will probably point out that they have tried to make sure the cuts don’t adversely affect front line services, but they will!

MARVIN THE MARTIAN: How on Mars do you make £2 million of in year cuts without it affecting frontline services?

JOHN BRACE: Indeed… here is a link to the papers for tomorrow’s Wirral Schools Forum meeting which is a public meeting starting at 6.00pm in the Council Chamber in Wallasey Town Hall.

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Free School Meals and pages 87-88 of Wirral Council’s ~£12 million/year PFI contract with Wirral Schools Services Ltd

Free School Meals and pages 87-88 of Wirral Council’s ~£12 million/year PFI contract with Wirral Schools Services Ltd

Free School Meals and pages 87-88 of Wirral Council’s ~£12 million/year PFI contract with Wirral Schools Services Ltd

A delicious meal (not a school meal which we don't have any stock photos of) prepared for John by Leonora my wife who also writes for this blog and is a better at cook than I am.
A delicious meal (not a school meal which we don’t have any stock photos of) prepared for John by Leonora my wife who also writes for this blog and is a better at cook than I am.

This is a small part of the Schools PFI contract that Wirral Council has that costs the taxpayer this year ~£12 million a year. This is part of a massive contract that I estimate being between 500 and 1000 pages long.

It relates to the following schools (one primary and eight secondary) plus two City Learning Centres:

Leasowe Primary
Bebington High
University Academy of Birkenhead (formerly called Park High)
South Wirral High
Weatherhead High
Hilbre High
Prenton High
Wallasey High
Wirral Grammar Girls

Wallasey City Learning Centre
Hilbre City Learning Centre

Before I start on quoting from the contract on page 87, I need to first explain what the following terms mean.

“Authority” refers to Wirral Council.

“Schools” are the schools listed above that are part of the PFI contract.

“Category A Consumers” means “school meals supplied to those pupils at a School who pay for meals and/or refreshments taken in the Catering Area of the Schools.”

“Category B Consumers” means “those pupils who have been notified to Projet Co as being entitled to free meals, and who take these meals in the School’s Catering Area.”

Category A Consumers & Category B Consumers are treated as non-business for VAT purposes. To be honest a lot of this contract is about tax!

“Category C Consumers” means “meals supplied to members of staff of the Schools and visitors who have been notified to Project Co as being entitled to a free meal are supplied free of charge by the Authority to the consumer and output tax is not applicable.”

“Category D Consumers” are “meals supplied to persons other than pupils who take and pay for a meal and/or refreshments are treated as taxable supplies for VAT purposes. Project Co shall include the appropriate rate of VAT in the prices charged for such meals and refreshments and supply output statistics and the value of VAT output tax to the Authority within a timetable specified by the Authority which has been agreed with HM Customs & Excise”

Right now onto the bit of the contract about free school meals (pages 87-88), my comments are in italics.

20.4 Free School Meals

(1) The Authority has a duty to provide free school meals to those pupils at the Schools who fall into Category B Consumers. Members of staff and visitors of the School who are Category C Consumers are also entitled to a free meal paid for by the Authority or School.

OK, reasonable so far, restates legal requirement in sentence 1. Didn’t know about sentence 2 though… which is a tad unclear as to who pays.

(2) The Authority will issue to all individuals referred to in Clause 20.4(1) a card (the “Smart Card“) in a design to be agreed from time to time by the Authority and Project Co, but including the person’s name, photograph and the name of the School, which shall be credited with cash equivalent to the number of free school meals that person is entitled to in that Contract Month.

Wow, things have changed a lot since my day. So, just because their parents are on means tested benefits, you’re insisting children have photo ID and presumably present such photo ID every time they get a “free school meal”? Sounds like it’s “free” but with strings attached?! OK, call me a civil liberties person who rejoiced when the Coalition government scrapped the ID card plan, but forcing children from poor backgrounds to use photo ID?? Maybe I’m just old fashioned?

(3) The Authority will, using its own data and confidential information on free meals, prior to the commencement of each Contract Month issue a list to Project Co of the number of persons entitled to free school meals.

So wait a sec, Project Co is being given a list of all children that get free school meals and children also have to present photo ID to get them? What’s the point of the photo ID then??? Why not just ask them their name or am I missing something??? Surely kids know their own name? Yes, it’s “confidential information” so why is Wirral Council handing it over to a private company as part of this contract??? *sentence deleted following editorial meeting* Bristol based Wirral Schools Services Limited was called Jarvishelf 2 Limited prior to 29th December 2000.

(4) Project Co will invoice the Authority on the last day of each Contract Month for the number of free school meals supplied to Category B Consumers at the Meal of the Day Price together with VAT if applicable.

Eh, I thought page 86 said that Category A&B Consumers were “non-business” for VAT purposes? I suppose I’m not a contract lawyer being paid an extortionate amount to write this stuff though.

(5) Project Co will invoice the Authority on the last day of the each Contract Month for the number of free school meals supplied to Category C Consumers at a charge pre-agreed with the relevant School together with VAT if applicable.

Free meals for staff and visitors eh? Must be one of the few perks of the job I suppose… mind you teaching staff have to put up with a lot so I suppose a “free school meal” is the least they deserve.

(6) In addition to Clauses 20.4(4) and (5), Project Co will invoice the Authority on the last day of each Contract Month for any function, hospitality or visitors’ meals supplied together with VAT if applicable.

Functions, hospitality, oh dear are we getting into “golf” territory again eh? OK, I can envisage visiting sports teams from other schools needing something to eat, staff from other schools and places, meetings held at the school etc, but how much “hospitality” goes on in a school anyway. I get the impression Wirral Schools aren’t inviting the Mayor of Helsinki over every week to their school for a start (or maybe they are?)

(7) Project Co in its capacity as agent for the Authority (or the relevant Support Service Provider acting on behalf of Project Co) will provide:

(a) to each Category B Consumer bearing a Smart Card, a meal to the value of the Meal of the Day Price; and

(b) to each Category C Consumer bearing a Smart Card, a meal to the value of the pre-agreed charge referred to in Clause 20.4(5).

Oh dear, cash seems so old fashioned now doesn’t it? What’s “Meal of the Day” anyway? Gruel? Bread and water? Maybe I’m thinking of Oliver (the musical). I find it worrying that even at primary school age kids are forced to use photo ID cards just to get what they’re entitled to although maybe that’s just the way society has changed. It’s enough to drive people to packed lunches! What if the poor child leaves their “Smart Card” at home, do they go hungry? No “Meal of the Day” for them? After all in the days of cash (yes seems I’m old fashioned), your friends could give you (or even lend you) the money if you were short at the till. No more it seems in these contracts for cashless school meals!

(8) If the price of a meal chosen by:

(a) a Category B Consumer exceeds the Meal of the Day Price; or

(b) a Category C Consumer exceeds the value of the pre-agreed charge referred to in Clause 20.4(5)

the bearer shall be responsible for crediting its card with the excess via the dining room tills and the Authority shall have no liability in respect of the excess. If the price of a meal chosen by a Category B Consumer or a Category C Consumer is less than the value of the Meal of the Day or the pre-agreed charge (as the case may be) Project Co or the relevant Support Service Provider shall be entitled to retain the excess.

Wow, just wow. Let’s take a hypothetical Meal of the Day price at £2.30 (which this recent article about the Cabinet decision on increasing it helpfully provides). If someone choses items to eat that go over this £2.30 threshold, they have to pay more. If someone choses items that go under it, there is no refund but the “Project Co” (Wirral Schools Services Limited) or “Support Service Provider” gets to keep the difference!!! I suppose that’s what you call capitalism!

Category B Consumers are free school meals paid for by the taxpayer. However, even if the cost of providing such meals (out of taxes) is less than the “Meal of the Day” price, this company charges the taxpayer at the “Meal of the Day” price and makes profit on the difference! Yes, they’re making profit out of school children’s’ meals!!!

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And so ends the lesson for today on capitalism. It goes without saying that the Cabinet Member for this area at the time the contract was signed in 2004 was Councillor Phil Davies (currently Leader of the Council) doesn’t it?

And yes, there are even more worrying bits of this massive contract (that keeps on running in the gift that keeps on giving for the capitalists for well over another decade) than the minor section on free school meals above, but if I wrote about the but I’m thinking about it would probably lead to questions being asked (even a panic!) and I might be misconstrued due to the millions of pounds that particular bit involves being transferred from Wirral Council to this company to sort out that “mistake”. No wonder the first page is marked “private and confidential”!

However there are some positives about this new approach:

(a) other pupils can’t do the faux pas I did when I was 10 and transferred schools in year 6 (last year of primary school). The new school I transferred to was in a “working class” area, whereas where I had come from was “middle class”.

I reminded a friend of mine (I still remember this embarrassing conversation twenty-four years later although I hope the other guy has forgotten it by now) he’d forgotten to pay at the till for his school meal for him to look extremely embarrassed and have to explain that he hadn’t forgotten to pay and that he was on free school meals. I then committed a second faux pas as I had to ask what “free school meals” actually meant as at age ten I didn’t know why (strangely but perhaps understandably my education (paid for by Wirral Council) had been somewhat lacking to this point on the intricacies of the UK welfare benefits system in 1991, free school meals and other such matters). Such matters were communicated by schools in mind numbing detail to parents in long detailed communications, but concepts not really understood by ten year old children such as myself (the guy I was talking to understood but not me). Maybe these days children have a better understanding of such things than I did then or maybe they don’t.

In the approach above (as outlined in the contract) all kids are issued with a photo ID card and presumably the children on free school meals don’t have “FREE SCHOOL MEALS” emblazoned in large capital letters written on the card.

(b) it reduces the risk of bullying of kids for their lunch money as the card has a photo on it. Unlike money the photo ID cards (unless you happen to be identical twins and I remember the identical twins when I was at school playing all kids of jokes on the adults as their fellow children could tell them apart but the adults couldn’t) can’t be transferred between people easily if the photo is compared to the person using it.

(c) all this bureaucracy is why some parents then and now probably just opt for the simpler option of packed lunches (although if your family is entitled to free school meals this might be ruled out on terms of cost). The upside is no queuing, parents know what their children are eating and fewer profits going to companies making money out of the taxpayer and others.

(d) free school meals have been introduced for all primary school children this month by the Coalition government for under 7 year olds (1.5 million children). The fact all children on this age group (and not just those on means tested benefits) get an entitlement to free school meals should cut down on a lot of bureaucracy.

To put it simply, it is far easier from an administrative perspective giving everyone an entitlement to a free school meal from school age to age seven, then having to process each form detailing the benefits that qualify a family (who may have one or more children at one or more schools) for free school meals, checking that said benefit is now claimed and if so over which dates, tracking said child through the school system if they move schools and sorting out the paperwork, et cetera, et cetera. The current system is a minefield of bureaucracy and takes a lot of staff time who could be using their time to do things that are more use to society than shuffling paperwork around (not to say that isn’t important).

It’s also been a lot of work for schools, a lot of work for the LEA too, which has reduced somewhat now, although a lot of questions have been asked before and after this change about the knock on effect of how the “pupil premium” is calculated as this is a measure whereby schools get extra money based on how many children there get free school meals.

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Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

                                                     

Treasury Building (Wirral Council), Hamilton Square, Birkenhead, 19th August 2014 (you can click on the photo for a more high-resolution version)
Treasury Building (Wirral Council), Hamilton Square, Birkenhead, 19th August 2014 (you can click on the photo for a more high-resolution version)

Yesterday on a sunny afternoon, I went to the Wirral Council building pictured above known as the Treasury Building to inspect various Wirral Council invoices. I was exercising an obscure right under s.15 of the Audit Commission Act 1998 c.18. This right means that for a few weeks each year, as an “interested person” you can inspect the accounts for the previous financial year that in the process of being audited by Grant Thornton. You can also inspect all books, deeds, contracts, bills, vouchers and receipts that relate to these accounting records and make copies of all or any part of the accounts and those other documents. This year (for Wirral Council) that period ran from 21st July to the 15th August, so sadly if you’re thinking of exercising this right you’ll now have to wait till next year to do so!

However I had put in my request during that brief time period for five areas I was interested in. I’ve briefly describe what those four areas were, the first was invoices from SCC PLC (which is a large IT company), the second and third batches were invoices for legal matters (solicitors, barristers, expert witnesses, court fees etc), the fourth were some general invoices and the fifth were various contracts (two of which were the Schools PFI contract and the Birkenhead Market lease).

The contracts aren’t ready yet, but the invoices were available for inspection yesterday and I also exercised my s.15(1)(b) right to copies. Just the copies of invoices comes to hundreds of pages of documents (which may take me a while to scan in). Some pages are more heavily redacted than others. However this blog post is going to concentrate on just one which is document 117 in one of the two legal bundles. The document (in the form I received it from Wirral Council) is below (you can click on the photo for a more readable version).

11KBW Invoice for appeal of an ICO decision notice (October 2013) Metropolitan Borough of Wirral (£1872) redacted
11KBW Invoice for appeal of an ICO decision notice (October 2013) Metropolitan Borough of Wirral (£1872) redacted

A bit of context is probably needed about this invoice first. 11KBW is a London-based chamber of barristers that specialise in employment, public and commercial law. You can find out more about them on their website. This particular invoice for £1,872 (including VAT) was for “perusing and considering papers, advising by email, telephone and writing and drafting grounds of appeal to an ICO decision notice”. Whereas the first bit of that is understandable, if you don’t know what an ICO decision notice is then I’d better explain.

If a person makes a Freedom of Information request to Wirral Council, then is not happy with the response, requests an internal review, then they’re not happy with the internal review they can appeal the decision to the Information Commissioner’s Office (known as ICO). The ICO prefer to deal with things informally, but if they can’t they will issue a “decision notice”. A decision notice is an independent view of ICO’s one way or the other on the FOI request and as to whether the body to whom it has been made has complied with the Freedom of Information legislation and sometimes also the Environmental Information Regulations.

Unless the body to whom the FOI request is made or the person making the request appeals the decision notice within 28 days, the body to whom the FOI request is made has to comply with the decision notice within 35 calendar days. Sometimes ICO agree with the body the FOI request is made to so no further action is required. Other times the decision notice compels the body (unless they appeal) to disclose the information. If the public body doesn’t comply with the decision notice within 35 calendar days then ICO can tell the High Court about this failure and it would be dealt with as a “contempt of court” issue.

Helpfully (unlike a lot of other court matters), ICO have a search function on their website for decision notices. As the invoice is for drafting grounds of an appeal (which has to happen within 28 days of the notice) a search for decision notices from the 27th September 2013 to the 25th October 2013 brings up three decision notices FS50496446, FS50491264 and FS50474741.

The first of those three (FS50496446) states in the summary “As the council has now provided a response, the Commissioner requires no steps to be taken.” so it’s not that one. The last sentence of the summary on FS50474741 states “This decision notice is currently under appeal to the Tribunal” (which is a little out of date as by now the tribunal has already reached its decision on that matter). Therefore this invoice is (by process of elimination) about the eight page decision notice FS50474741.

The decision notice goes into the detail about what the original FOI request (which you can read for yourself on the whatdotheyknow website) was about (made on the 4th February 2012), which is for correspondence between Wirral Council and DLA Piper UK LLP. Much of the correspondence is between DLA Piper Solicitors and Anna Klonowski Associates Limited and includes an amendment to the contract between AKA Limited and Wirral Council. The information also included Bill Norman (Borough Solicitor)’s advice to councillors on publication of Anna Klonowski Associate’s report which was previously published as an exclusive on this blog on December 12th 2011.

When the AKA report was published, the issue made the regional TV news (you can view a video clip of that below this paragraph) and a no confidence vote which removed both Cllr Steve Foulkes as Leader of the Council and the minority Labour administration. The Labour administration was replaced by a short-lived (~3 month) Conservative/Lib Dem one in the February of 2012. The whole matter was a very sensitive (and somewhat embarrassing) period in Wirral Council’s history (even more than the public inquiry into library closures was) and it’s probably somewhat understandable as to why Wirral Council didn’t want information as to what happened “behind the scenes” being released into the public domain. As far as I remember (and it was some years ago so I hope my memory is correct on this point), Wirral Council was paying DLA Piper to give legal advice to itself and AKA Limited. This was in relation to the inquiry of AKA Ltd started by Cllr Jeff Green into Martin Morton’s whistleblowing concerns (in the brief period when as a Conservative councillor he was Leader of the Council).

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However, in addition to the details of the decision notice, other information has been blacked out. The part at the top right where it states “professional fees of”, I think relates to a junior barrister called Mr Robin Hopkins who is also on Twitter. The reason behind this is that at the bottom of the invoice it states “PLEASE MAKE CHEQUES PAYABLE TO Mr Robin Hopkins” and his name also appears as the organisation name on the list of invoices Wirral Council publish of over £500 for October. On Wirral Council’s systems although a small number of invoices from barristers chambers come under the name of the barrister’s chambers, most appear using the barrister’s name as the organisation.

As to the name of the Wirral Council officer that the pro forma invoice is addressed to, it would seem most likely that this is Surjit Tour. Not only does his short name fit what is blacked out, but he’s also the Head of Service for this service area within Wirral Council. I don’t know whether he’d actually be the solicitor at Wirral Council giving instructions to the barrister on this issue (as there are over a dozen solicitors employed at Wirral Council). I’ve no idea whose signature it is on this invoice and there are three other places on the invoice where officers’ initials or names have also been blacked out.

When the appeal to ICO’s decision notice was heard at the First-Tier Information Tribunal you can read this post about it on Paul Cardin’s blog, there’s another write-up about it in Local Government Lawyer and a copy of the 16 page unanimous decision of the tribunal can be read here.

The invoice (partly revealed) with my educated guesses in green as to what’s behind the redactions is below. However it begs the question, why did Wirral Council redact this information and what have they got to hide? Or is it just a case of they’d prefer the press and public to forget about the entire Martin Morton/AKA issues which were compared to “Watergate” by Cllr Stuart Kelly? If they’d chosen not to appeal this decision wouldn’t that meant a saving of £1,872 that Wirral Council could have instead spent on education or social services? I thought that a Labour councillor (was it Cllr Phil Davies?) stated that the current Labour administration was “open and transparent”? Only as recently as June of this year wasn’t the Cabinet Member Cllr Ann McLachlan stating “the key problem here that we have a high volume of FOIs from a small number of people”? So do Wirral Council see the people making FOI requests as the problem rather than their own cultural attitudes towards openness and transparency?

Partially unredacted invoice relating to an appeal to ICO Decision Notice FS50474741 (Robin Hopkins of 11KBW) Metropolitan Borough of Wirral for £1872 (invoice 117)
Partially unredacted invoice relating to an appeal to ICO Decision Notice FS50474741 (Robin Hopkins of 11KBW) Metropolitan Borough of Wirral for £1872 (invoice 117)

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