Will Wirral Council's Cabinet decide to close Lyndale School on the 31st August 2016?

Will Wirral Council’s Cabinet decide to close Lyndale School on the 31st August 2016?

Will Wirral Council’s Cabinet decide to close Lyndale School on the 31st August 2016?

                                                                

Councillor Tony Smith 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, Lyndzay Roberts
Councillor Tony Smith 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, Lyndzay Roberts

One of the things I’ve mulled over the past few days are the papers published for the special Cabinet meeting on Thursday 17th December. Due to the volume of paperwork to do with this item, this small piece can’t do justice to the matter so I suggest you read the paperwork for that agenda item on Wirral Council’s website in full.

Sadly for Tranmere Rover’s fans (issues to do with the training ground are agenda item 4) it is agenda item 3 (Report Detailing the Outcome of the Representation Period about the Proposed Closure of The Lyndale School) and its six appendices that is the subject of this piece.

The whole matter is also connected to this Freedom of Information Act request I made on the 20th November 2014 for the consultation responses (refused yesterday on s.21 grounds as redacted consultation responses (99 A4 pages of them) were published as part of the Cabinet papers here).

I will probably request an internal review of the Freedom of Information Act request later today as Wirral Council (due to the redactions) have not supplied me with the consultation responses as much information is missing and they haven’t given a reason under the Freedom of Information Act legislation as to why.

I also have put in a request for a question to Cllr Tony Smith at next Monday’s Council meeting (to which I’ll get a supplementary question), the question (that I emailed in on the 4th December 2014) is this:

This is my question for the Council meeting on the 15th December 2014 to Cllr Tony Smith (Cabinet Member for Children and Family Services).

——————————————————————————————————-
Wirral Council recently had a four-week consultation on the closure of the Lyndale School in Eastham and there will be a special Cabinet meeting later this month on the 17th December 2014.

Can you please answer:

(a) how many responses were received by Wirral Council to the latest four-week consultation on closure of the Lyndale School,
(b) whether the text of the responses to the latest four-week consultation will be published in full (rather than a summary in a Cabinet report) and if so when,
(c) whether all Cabinet Members making a decision on the 17th December 2014 will in advance of making a decision at the meeting of the 17th December 2014 have read all the written consultation responses to the four-week consultation on closure prior to making their decision on the 17th December 2014

and

(d) whether all Cabinet Members making a decision on the 17th December 2014 will in advance of making a decision at the meeting of the 17th December 2014 have read the statutory guidance for decision makers on this matter issued earlier this year by the government which is available online?

——————————————————————————————————-

Obviously parts (a) and (b) have been answered by the Cabinet papers being published. Hopefully in answer to (c) he will give the answer that he and the other Cabinet Members will find the time between now and the Cabinet meeting on Thursday evening to read the 99 pages of consultation responses and in answer to (d) the 76 pages of statutory guidance.

The current recommendation from officers is that the school is not closed on the 31st December 2015, but is closed on the 31st August 2016 instead.

There are many matters I could write here about the decision to be made, however I will make these points. If I remember correctly Wirral Council’s constitution in Article 13 (principles of decision-making) specifically Article 13.2 states that when reaching decisions councillors (bear in mind Council here also means decisions made by Wirral Council’s Cabinet) that:

“All decisions of the Council will be made in accordance with the following principles:

(a) proportionality (i.e. the action must be proportionate to the desired outcome);
(b) due consultation and the consideration of professional advice from officers;
(c) respect for human rights;
(d) a presumption in favour of openness;
(e) clarity of aims and desired outcomes; and
(f) Wednesbury reasonableness (i.e. the decision must not be so unreasonable that no reasonable Council could have reached it, having taken into account all relevant considerations, and having ignored irrelevant considerations). ”

Some interesting points I wish to make here, only the professional advice from officers needs to be considered. If officers are for example giving amateurish (not professional) advice or have flat out got things wrong it doesn’t need to be factored into the decision.

The consultation responses have been redacted heavily but the advice of officers hasn’t.

What are the clear aims of closing down the Lyndale School (on whatever date)?

Bearing in mind they have a legal duty, that is they must pay regard to the statutory guidance at all stages of the decision-making process on closing the school (for example at the earlier Cabinet meetings, the Council meeting, the Coordinating Committee meetings) as the statutory guidance (published in January 2014 and presumably there was earlier guidance before this) hasn’t been included on the agenda until now can that actually be proved for the earlier decisions that led to this?

Have all the human rights considerations been properly considered? There are matters beyond what I’ve written here that I may bring up in my supplementary question on Monday evening.

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UPDATED: Last day of 4-week Lyndale School closure consultation: request for consultation responses

UPDATED: Last day of 4-week Lyndale School closure consultation: request for consultation responses

UPDATED: Last day of 4-week Lyndale School closure consultation: request for consultation responses

                                                       

Councillor Tony Smith 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, Lyndzay Roberts
Councillor Tony Smith 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, Lyndzay Roberts

UPDATED 19/11/2014 16:12 to include anonymised consultation response received.

First copy of a response to the consultation (he or she wishes to remain anonymous) is added here:

“I am writing in response to the consultation. As a Wirral resident, I believe that this school should remain open. I am not convinced that it will be in the best interests of the children of Lyndale or the other two schools for Lyndale to close. Further, I have not seen evidence that the independent consultants report was based on an in depth analysis of the children’s needs. The consultant appears to have spent little time with the school staff or parents. These children have really specialist needs and the Council should take into account that the most vulnerable children must be protected the most. This is a matter of humanity. The financial argument is not convincing so why close? ”

Today is the last day of the four-week consultation on closure of the Lyndale School from January 2016. The details are currently on Wirral Council’s website.

Shortly before Christmas on the 17th December 2014 Wirral Council’s Cabinet will meet to discuss (and probably) decide what to do next.

I was planning tomorrow to make a FOI request to responses to this current consultation. Wirral Council refused my FOI request for responses to the previous consultation that ran from 2nd April 2014 to 25th June 2014. I requested an internal review as they stated on the 29th July 2014 they would publish them in September (but never did). I’m still waiting for the internal review.

On the basis I’m sure I’ll get a similar response if I make a FOI request tomorrow for responses to the four-week consultation closing today, if you have responded to this consultation and would like me to publish your response (whether anonymously or not), please email me at john.brace@gmail.com.

I’ll do my best to publish consultation responses I do receive on this blog ahead of the Cabinet meeting on the 17th December 2014.

UPDATED 27/11/2014 You can now read the second consultation response from Cllr Phil Gilchrist here.

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A letter to Wirral Council about the 29 ways they allegedly got the Lyndale School decision wrong

A letter to Wirral Council about the 29 ways they allegedly got the Lyndale School decision wrong

A letter to Wirral Council about the 29 ways they allegedly got the Lyndale School decision wrong

                                                                                      

Councillor Tony Smith (Cabinet Member for Children and Family Services) at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School L to R Cllr Stuart Whittingham, Cllr Tony Smith, 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

Below is a copy of a letter emailed to Wirral Council’s Surjit Tour, the nine councillors on the Cabinet that took the “decision” and Julia Hassall.

Jenmaleo,

134 Boundary Road,

Bidston

Wirral

CH43 7PH

Wirral Council

Metropolitan Borough of Wirral

Wallasey Town Hall,

Brighton Street,

Wallasey,

Merseyside,

CH44 8ED,

England

8th September 2014

By email

Surjit Tour surjittour@wirral.gov.uk

Cllr Phil Davies phildavies@wirral.gov.uk

Cllr Tony Smith tonysmith@wirral.gov.uk

Cllr Bernie Mooney berniemooney@wirral.gov.uk

Cllr Stuart Whittingham stuartwhittingham@wirral.gov.uk

Cllr Chris Meaden chrismeaden@wirral.gov.uk

Cllr Chris Jones christinejones@wirral.gov.uk

Cllr Adrian Jones adrianjones@wirral.gov.uk

Cllr George Davies georgedavies@wirral.gov.uk

Cllr Pat Hackett pathackett@wirral.gov.uk

Julia Hassall juliahassall@wirral.gov.uk

LETTER BEFORE CLAIM

Proposed claim for judicial review

1. TO

SURJIT TOUR

Legal and Member Services

Metropolitan Borough of Wirral

Wallasey Town Hall,

Brighton Street,

Wallasey,

Merseyside,

CH44 8ED,

England

2. The claimant

MR JOHN BRACE

Jenmaleo,

134 Boundary Road,

Bidston,

CH43 7PH

3. Reference details

Amended Cabinet recommendation of 4th September 2014 with respect to Lyndale School (agenda items 4&5)

4. The details of the matter being challenged

What is being challenged is the decision of Wirral Council’s Cabinet on the evening of the 4th September 2014 to make the amended recommendation which is copied below. More specifically the details of the matter being challenged are 1.1, 1.2, 1.3, 2.0 and 2.1 of the recommendation.

“CABINET – 4TH SEPTEMBER 2014

THE LYNDALE SCHOOL

RECOMMENDATION

1.1 Cabinet thanks all those who have participated in the consultation exercise, with particular regard to submissions from parents of children at The Lyndale School.

1.2 Having reviewed the responses received during the consultation process, analysed the alternative options and applied the SEN Improvement Test, is it recommended that:

Statutory notices be published in respect of the closure of The Lyndale School from January 2016.

That Wirral Council, under the leadership of the Director of Children’s Services, work individually, with children and families, towards effecting a smooth and supportive transition to an alternative place at one of the following schools:

Elleray Park Special School

Stanley Special School

Another appropriate school

In doing so, that the Director of Children’s Services, in acknowledgement of the close relationships that exist between staff and pupils at The Lyndale School, investigates if staff could be employed, where possible, at receiving schools, (subject to legal practice and the approval of governing bodies).

The Director of Children’s Services be authorised to take all necessary steps to publish the proposals and ensure the prescribed procedures are followed, including requesting permissions from the Secretary of State, in furtherance of the proposals.

A further report be brought on the outcome of the publication of the statutory notices.

1.3 That the Director of Children’s Services to ensure that Education, Health and Care Plans for all pupils of the Lyndale School are completed by the 31st October.

2.0 REASONS FOR RECOMMENDATION

2.1 Having looked at all the options, and applied the SEN Improvement Test, it is our opinion that, while we recognise the special place that The Lyndale School has in the affection of parents and children, the continued operation and maintenance of a school of this size will not meet the future educational needs of the children, nor is a financially viable option, especially when there are good alternative options available.

The Council has a responsibility to ensure for the sustainable future provision of education for the pupils of The Lyndale School. In addition, we have to manage resources effectively for all schools and the school population.

This has been a difficult decision to make, and we would like to affirm our continued intention to work positively with the families and the children affected, and reassure parents of our continued commitment to their child’s wellbeing and education.”

5

The issue

Brief summary of facts:

Wirral Council’s Cabinet made a key decision on the evening of 4th September 2014 at a public meeting to proceed to a second round of consultation on the closure of the Lyndale School. The recommendation agreed by nine councillors is outlined above.

Why it is contended to be wrong:

It is contended to be wrong because:

(a) The notice requirements before the meeting were not met.

The actions specified to be taken in advance of the Cabinet meeting in the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 specifically Regulations 9-11 weren’t met. More specifically the document specified in Regulation 9 wasn’t published 28 days before the meeting or the notice in Regulation 10(3)(b) or the notice in Regulation 11(2)(b).

Regulation 9(1) makes it quite clear that if these requirements are not met that “that decision must not be made)

(b) The key decision was made by the wrong people.

In addition to the Cabinet between four and nine other people should’ve been included in the decision. Specifically these are:

between 2-5 parent governor representatives,

a representative of the Catholic diocese and

a representative of the Anglican diocese

These people should have all had voting/speaking rights and been invited to take part in the Cabinet meeting.

Normally Cabinet would not be required to have such representatives on it as it has oversight by the Families and Wellbeing Policy and Performance Committee and Coordinating Committee.

However as a representative of the Anglican diocese has not yet been appointed to the Families and Wellbeing Policy and Performance Committee or the Coordinating Committee due to this lack of oversight the Cabinet was required to have them take part in the decision making on this matter.

This legal requirement is outlined in the School Standards and Framework Act 1998 c.31/ s.499 of the Education Act 1996 c.56 and the underlying regulations such as Regulation 5 of the Local Authorities (Committee System) (England) Regulations 2012 and regulation 5 of The Education (School Organisation Committees) (England) Regulations 1999 and other underlying regulations.

(c) Human Rights issues

Wirral Council have to make decisions that are compatible with the Convention Rights (s.6(1) Human Rights Act 1998 c.42). Specifically these concerns are about Protocol 1 (Article 2), article 2, article 3, article 11 and article 14.

The concerns are briefly outlined below:

Protocol 1 (Article 2) “right to education” as closure of the school would interfere with the parent’s right to “ensure such education and teaching in conformity with their religious and philosophical convictions”

Article 2 “right to life” as closure of the school would possibly cause the death of one or more of its current pupils

Article 3 “prohibition of torture” as closure of the school would be “degrading treatment or punishment” of the parents and pupils

Article 11 “freedom of assembly and association” as closure of the school would interfere with the rights of the pupils, staff and parents to associate with each other and none of the requirements in 11(2) are known to be met

Article 14 “prohibition of discrimination” as:

(a) the school is for severely disabled children therefore closing (whilst not making known closures elsewhere) could be classed as discrimination

(b) the political views of the parents are that the school should not close which has been widely expressed in the media prior to the meeting in opposition to the stated views of the Labour administration at Wirral Council

(c) many of the severely disabled children at the school were born that way

(d) Equality Act 2010 c.15 considerations

Section 13 – the Lyndale pupils (person B) have a protected characteristic (disability). They would be treated less favourably if the school closed as less money would be spent on their education. Furthermore many of the approximately thirty staff have protected characteristics (who will be out of a job if the school closes)

Section 15 – this relates to discrimination arising from disability. The pupils at the school are disabled. Wirral Council would have to show that the treatment is “a proportionate means of achieving a legitimate aim” which has not yet been demonstrated

Section 19 – this relates to indirect discrimination of the parents and family members of the Lyndale pupils

Section 26 – “harrasment”, the closure plans have resulted in a violation of dignity of those with protected characteristics and have intimidated staff, parents and pupils at the school. One example of this would be that the headteacher has left.

Section 27 – the parents have threatened legal action which is a protected act

Section 85 – these plans force the Lyndale School to breach s.85(2)(f) as it subjects pupils and their parents to detriment

Section 86 – this relates to victimisation of the pupils for the conduct of their parents. The parents have petitioned, campaigned and lobbied against closure. The siblings and parents of the children at the Lyndale School are being penalised for this

Section 112 – the way Wirral Council behaved (for example making a false public statement that if the school was closed that staff would be redeployed during the consultation) is aiding contraventions of the Equality Act 2010

Section 149 – “public sector equality duty” Due regard to 149(a), (b) and (c) by Wirral Council has not been given. The same goes for the duties under 149(5)(a) and 149(5)(b). These relate to the proteted characterists of pupils, staff and parents at the school.

Section 150 – “public authorities and public functions” – the Metropolitan Borough of Wirral Council is a “district council” in England as defined in Schedule 19, therefore 150(3), 150(4) and 150(5) apply to it.

Section 158 – “positive action: general” the pupils of Lyndale school have needs that are different from the needs of person that are not disabled. Those that have PMLD (which is a protected characteristic) are a disproportinately low proportion of the school population. The Lyndale pupils are at this school because it’s a special school that caters for the needs of disabled pupils with PMLD. Therefore they will suffer a disadvantage if the school closes. The level of education they receive will change if the school closes and it is alleged that this new provision will not meet their needs.

(e) Disability Discrimination Act 1995 c.50 considerations

Section 19 – Wirral Council provides the service of education to the disabled pupils at the Lyndale School. If the school is closed the current (and potential future) disabled pupils would find it “impossible” or “unreasonably difficult” to use the school. Although Wirral Council is a “local education authority in England” and therefore a “relevant body” as defined in s.19(6), it remains to be seen whether education & transport are services that fall under s.19(5)(a) or not.

Section 21 – The adjustment required would be to fund the running costs of the Lyndale School, whilst it is appreciated that Wirral Council is a “local education authority in England” and therefore a “relevant body”, this duty of providers of services to make adjustments could/could not apply to Wirral Council

Section 21B – Wirral Council is a “public authority” and is discriminating against disabled people in carrying out its functions.

Section 21D – Wirral Council is failing in its general duties to:

(1)(a) the need to eliminate discrimination that is unlawful

(1)(b) the need to eliminate harrassment of disabled persons that is related to their disabilities

(1)(c) the need to promote equality of opportunity between disabled persons and other persons

(1)(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons

(1)(e) the need to promote positive attitudes towards disabled persons

(1)(f) the need to encourage participation by disabled persons in public life

Section 28A – “Discrimination against disabled pupils and prospective pupils” This relations to 28A(2) and 28A(1)(a) as Wirral Council is “the local education authority” defined in Schedule 4A. Wirral Council is proposing altering its admission arrangements which discriminate against the current disabled pupils at the Lyndale School. Closure would result in the current pupils being excluded permanently.

Section 28B – Lyndale pupils are being treated less favourably because of reasons realted to their disability/ies. It is unreasonable to assume that Wirral Council does not know they are disabled as it is a special school

Section 28C – “disabled pupils not to be substantially disadvantaged” The Lyndale pupils are being put at a substansial disadvantage compared to persons who are not disabled with regards to the admission arrangemnts.

Section 28F – There has been a failure of the duty of the education authority not to discriminate, it is unknown at this stage what prescribed function this relates to (if any).

Section 49A – In carrying out its functions, Wirral Council is not having due regard to

(1)(a) the need to eliminate discrimination that is unlawful

(1)(b) the need to eliminate harrassment of disabled persons that is related to their disabilities

(1)(c) the need to promote equality of opportunity between disabled persons and other persons

(1)(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons

(1)(e) the need to promote positive attitudes towards disabled persons

(1)(f) the need to encourage participation by disabled persons in public life

(f) Disability Discrimination Act 2005 c.13 considerations

Section 2 – This section inserted 21B in the Disability Discrimination Act 2005 (see arguments above for s.21B of the Disability Discrimination Act 2005)

Section 3 – This section inserted 49A in the Disability Discrimination Act 2005 (see arguments above for s.49A of the Disability Discrimination Act 2005)

(g) statutory guidance

Statutory guidance has been issued which includes the application of a test to such proposals known as the “SEN Improvement Test” to such decisions. Wirral Council claims that its plans for closure meet the SEN Improvement Test. The Claimant disagrees that the requirements of the SEN Improvement Test have been met to the preferred option (which is closure of the Lyndale School). This is because:

(i) it would not lead to improved access to education and associated services

(ii) it would not lead to improved access to specialist staff

(iii) it would not lead to improved access to suitable accommodation

(iv) it would not lead to an improved supply of suitable places

(v) there seems little clarity that the host schools mentioned in the decision (Elleray Park and Stanley School) are willing to receive pupils with communication and interaction needs

(vi) there is confusion as to how the proposals will be funded and the planned staffing arrangements that will be put in place

(Set out the date and details of the decision, or act or omission being challenged, a brief summary of the facts and why it is contented to be wrong)

6

The details of the action that the defendant is expected to take are:

(a) to make a written undertaking not implement the decision as an interim measure until a new Cabinet meeting happens,

(b) hold a further meeting of the Cabinet to make a decision that complies with:

(i) the notice requirements for the meeting (SI 2012/2089 Regulations 9-11) and

(ii) the other legal issues addressed in this letter

(c) to carry out a review of the matters raised in this letter and inform the Claimant of the outcome of that review

(d) to inform the Claimant if the decision is implemented and if so from what date

(e) to respond to this letter before the proposed reply date in section 12

(f) meet with Mr. John Brace before the proposed reply date so that these issues can be explored in depth in the hope that litigation can be avoided.

7

The details of the legal advisers, if any, dealing with this claim

N/A

8

The details of any interested parties

Cllr Phil Davies phildavies@wirral.gov.uk

Cllr Tony Smith tonysmith@wirral.gov.uk

Cllr Bernie Mooney berniemooney@wirral.gov.uk

Cllr Stuart Whittingham stuartwhittingham@wirral.gov.uk

Cllr Chris Meaden chrismeaden@wirral.gov.uk

Cllr Chris Jones christinejones@wirral.gov.uk

Cllr Adrian Jones adrianjones@wirral.gov.uk

Cllr George Davies georgedavies@wirral.gov.uk

Cllr Pat Hackett pathackett@wirral.gov.uk

Julia Hassall juliahassall@wirral.gov.uk

9

The details of any information sought

Details of information sought:

(a) a request for a fuller explanation of the reasons for the decision being challenged beyond those that form a part of the recommendation at 2.1

(b) statistical information on staff at the Lyndale School with reference to all protected characteristics

(c) statistical information on Wirral Council’s workforce with reference to all protected characteristics

(d) statistical information on current pupils at the Lyndale School with reference to all protected characteristics

(e) three year projected financial information about the Lyndale School projected budgets supplied to Wirral Council by the Lyndale School governors including total projected expenditure, total projected costs and total projected income

(f) earlier drafts of report titled “Report detailing the outcome of the consultation on the closure of the Lyndale School”

(g) earlier drafts of the report at Appendix 1 titled “The Independent Consultant’s Report”

10

The details of any documents that are considered relevant and necessary

(a) The consultation responses. These are considered necessary as they are referred to in 1.1 and 1.2 of the decision. Although I have already published some, I am unsure whether it is a complete set of consultation responses.

(b) Those documents outlined in section (9) specifically (e) to (g) (financial information and earlier drafts of reports)

(h) details of consultation with staff and relevant trade unions

(i) details of consultation with the governing body at Lyndale School

(j) Principal Educational Psychologist’s report

(k) detail as to how Wirral Council think the preferred option of closure meets the “SEN Improvement Test”

11

The address for reply and service of court documents

Jenmaleo

134 Boundary Road

Bidston

Wirral

CH43 7PH

12

Proposed reply date

24th September 2014

Yours sincerely,

John Brace

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