Whistleblowers assembled in Committee Room 1 to hear apologies from Wirral Council over a toxic whistleblowing saga involving secrecy, national, local and regional government, internal and external audit, the private sector, ££££s, senior managers, contracts and Wirral Council
Whistleblowers assembled in Committee Room 1 to hear apologies from Wirral Council over a toxic whistleblowing saga involving secrecy, national, local and regional government, internal and external audit, the private sector, ££££s, senior managers, contracts and Wirral Council
Nigel Hobro (standing) addresses the Audit and Risk Management Committee of Wirral Council 8th October 2014 L to R Cllr Adam Sykes, Cllr David Elderton, Andrew Mossop, Surjit Tour, Nigel Hobro (c) John Brace | still taken from video
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Above is a playlist of all parts of the Audit and Risk Management Committee (Wirral Council) meeting of 8th October 2014 held in Committee Room 1, Wallasey Town Hall starting at 6.00pm (apologies for recording problems)
Audit and Risk Management Committee
Cllr Jim Crabtree (Chair, Labour)
Cllr Ron Abbey (Vice-Chair, Labour)
Cllr Paul Doughty (Labour)
Cllr Matthew Patrick (Labour)
Cllr John Hale (Conservative spokesperson)
Cllr Adam Sykes (Conservative)
Cllr David Elderton (Conservative)
Cllr Stuart Kelly (Lib Dem spokesperson)
The Audit and Risk Management Committee of Wirral Council met for a special meeting about BIG/ISUS on the evening of 8th October 2014 whilst a thunderstorm raged outside Wallasey Town Hall. This was a continuing from its adjourned special meeting about the same topic on 22nd July 2014. For details of what happened at its meeting of the 22nd July 2014 see my earlier blog post Incredible first 5 minutes of Wirral Council councillors’ public meeting to discuss BIG & ISUS investigations.
The meeting started with a minute of silence for Mark Delap. Mark Delap was one of the Wirral Council employees that used to take minutes at its public meetings and had died recently.
After the minute of silence was over, the Chair asked for declarations of interest.
Cllr Matthew Patrick declared an interest due to a friendship with Nigel Hobro’s son (Nigel Hobro is one of the whistleblowers and spoke during the meeting itself).
Surjit Tour gave some brief advice to Cllr Matthew Patrick as to whether his interest was personal or prejudicial.
The Chair thanked Surjit Tour for the advice he had given to Cllr Matthew Patrick.
The Chair, Cllr Jim Crabtree then explained that there had been a lot of allegations since the issue had first been raised in 2011. There was a large volume of paperwork for the meeting, however details were redacted to protect businesses and companies. Also the names of officers and other people were blacked out. He also referred to commercial sensitivities and how they had gone to proper steps to protect identities.
He reminded people of the risk of legal challenge and Wirral Council’s liabilities. Cllr Crabtree asked everyone not to name names and continued by saying that any issues Wirral Council officers had addressed, they had done on behalf of the Council.
Cllr Stuart Kelly asked a question on the information that was redacted. He referred to a challenge to paragraph j, that was redacted in the papers to the July meeting, but was now provided. He wanted assurance from the legal officer Surjit Tour that the redactions were only in the categories as just outlined by the Chair.
Mr. Tour explained that the redactions had taken place to make sure that nobody by reasonable inquiry and information already in the public domain could piece together who or what the redacted information referred to and who the people redacted were. He added that in some cases it was unfortunately necessary to redact a lot of information mindful of what was already in the public domain, people could “fill in the gaps” which would expose Wirral Council to a liability.
The Chair invited Nigel Hobro to speak for at most fifteen minutes.
To be continued…
However below are some of my personal observations about this meeting I’ve started writing up above and a bit of a compare and contrast with two different special meetings of the Audit and Risk Management Committee held years apart (but both dealing with Wirral Council’s response to whistleblowers (one internal, one external).
It shows how history has a habit of endlessly repeating itself and is based on my opinion as one of the few people who was actually present at both meetings.
There are similarities between this public meeting and an earlier public meeting many years ago of the Audit and Risk Management Committee to decide on a response to the whistleblowing of former Wirral Council employee Martin Morton. Back then (years ago) there were arguments by politicians over a series of meetings over how much money should be paid back to those that were overcharged and to what year you go back to with the refunds.
Even when refunds were agreed by politicians, Wirral Council took so long that some of the people involved had died and in order cases (the ones that were still alive) the amounts were so large, that Wirral Council officers didn’t want to pay the people involved because they thought it would have a knock on effect on their benefits and officers doubted that some of the people had the capacity to be able to look after their own financial affairs.
Sadly the decision back then was fudged (which is partly what led to the problems later). Martin Morton’s concerns were also far, far wider than the overcharging issue, his concerns also involved allegations of the misuse of public money to fund organisations with links to serious and organised crime, serious allegations of serious crimes against vulnerable people who had apparently at the time not been investigated thoroughly enough, woefully poor corporate governance at Wirral Council, terribly weak political oversight due to put it frankly chaos back then and ultimately Mr Morton paid a personal price because people in Wirral Council tried to repeatedly punish him for daring to blow the whistle. Due to the large financial amounts involved, Cabinet had to sign off on the large expenditure that resulted.
One day before the AKA report was finally released to the public, the two middle managers involved in this matter were each paid a six figure sum each to leave Wirral Council.
At the earlier meeting (and at least one person on the Audit and Risk Management Committee is the same person as back then), the Chair back then accused one politician (Cllr Ron Abbey) of either not reading the papers for the meeting as they were asking questions that were already answered there or of completely misunderstanding what they had read (if they had read them). At this time the Chair was of a different political party to the Labour councillor (Cllr Ron Abbey) & in the interests of impartiality (with absolutely no offence meant towards one of my local councillors Cllr Jim Crabtree) many other local authorities have an unwritten rule that the Chair of the Audit and Risk Management Committee is not from the same political party as the ruling administration to ensure independence.
Knowing Cllr Crabtree as I do, I know that even if a councillor stepped out of line at a meeting he was chairing, even if the councillor was from the same political party as he was, Cllr Crabtree’s personality is such that he would frankly realise that it’s in the “public interest” to hold his fellow councillors to account even if he would have to be careful how he did this in public.
After it seems part of the reasons why Labour got a small majority on Wirral Council is because councillors from that party woke up the news that the Wirral public expected them to hold other politicians to account in public even if these were other councillors from the same political party.
Bill Norman (who left in somewhat mysterious circumstances in 2012) was the legal adviser to that earlier Audit and Risk Committee meeting years ago, not Surjit Tour as it is now. The issue of blacking out all the names (and other details) in the published papers was addressed by Bill Norman then with broadly similar reasons given to those given by Mr. Tour many years later. However I will point out that the culture of legal practice is such that confidentiality, especially when it comes to active proceedings is extremely important to maintain!
At the time this written material authored by Mr. Morton included in the papers for the meeting was also redacted, so this aspect of whistleblowing hasn’t changed much at all over the years at Wirral Council.
Wirral Council, back then and as it seems now has a fear of being sued. Although if they were open and transparent wouldn’t Wirral Council welcome judicial oversight of their decisions as it would give Wirral Council the chance for someone independent to look at it and the opportunity to defend themselves in court if they had done nothing wrong?
Perhaps it’s unfair to say a fear of being sued, it’s a fear at Wirral Council of being sued and losing and the results that flow from that which could be a combination of large financial penalties (or other things) as well as the fact that court reporters such as myself or the publications they publish in can’t actually be sued under British law for court reporting as long as we comply with the few rules that apply as court reporting attracts absolute privilege. All court hearings whether public or private are recorded by the court on tape anyway and in theory transcripts can be ordered.
Some may say for a large local Council (covering a population of ~320,000), whilst obviously they have their own organisational reputation to consider, that they seem unduly concerned at times at reputation management (although this is also a preoccupation of political parties) rather than dealing with matters in an entirely open and transparent way. There is a blurry line between the individual reputations of senior managers and politicians on one hand and the organisational reputation of the organisations they are either employed by or are elected to represent the views of the public at.
Some of the reports that went to the most meeting the day before yesterday, have been the subject of previous articles by me and FOI requests.
You can read my FOI request (25/8/13) for the report on ISUS here, which was refused on 23/9/13 and refused at internal review on 24/10/13. That external audit report can be read as part of the committee’s papers (see agenda item 2 and the links from this page on Wirral Council’s website if you wish to do.
Had the responses to those FOI requests been forthcoming and Wirral Council provided the information within weeks a lot more would have been in the public domain before the July and October meetings in 2014 of the Audit and Risk Management Committee meetings. Wirral Council instead chose to rely on exemptions to suppress the information and knew I was unlikely to appeal to ICO, as if I had I’d probably still be waiting for a decision!
Excessive secrecy just makes the public and press suspect that there’s a deliberate cover up or Wirral Council has done something it’s ashamed or embarrassed about. Usually the answer is a little more complicated than a conspiracy.
The Merseyside police investigation (which resulted in no charges) was used as an excuse by Wirral Council to deny FOI requests, not just about the one Grant Thornton recommended was referred to the police, but information in general about the other aspects too.
Wirral Council was recommended by the forensic arm of its external auditors to refer one very minor matter to the police. Wirral Council did and this was then used this as an excuse to delay and prevent further scrutiny. The police response (and I summarise) was that based on what they were told that there was insufficient evidence to charge somebody (or somebodies) with a crime. Remember criminal charges require basically two elements, proof that the alleged crime occurred and also generally for most criminal matters mens rea (proof of a “guilty mind” too). The latter is often harder to prove than the former, which is why defendants sometimes plead not guilty in order to get a jury trial! As Wirral Council actually carries out criminal prosecutions through the Wirral Magistrates Courts, I’m sure someone there who is actually aware of these matters!
This article is getting rather long and at the two thousand word mark I am somewhat digressing into related matters, although obviously it is not as long as the papers for that meeting which come in at the length of a medium-sized novel!
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9 councillors vote to make Wirral Council leisure centre concession scheme for Armed Forces less generous despite objections
9 councillors vote to make Wirral Council leisure centre concession scheme for Armed Forces less generous despite objections
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I will start by declaring an interest in this story as I have a friend who is now a Lance Corporal in the Armed Forces and was recently mentioned in this Telegraph article.
Last month (23rd September) there was a review (by the Coordinating Committee) of a Wirral Council Cabinet decision made on the 7th July 2014 to change the concessions provided at Wirral’s leisure centres to former Armed Forces personnel.
The decision had originally been scheduled to be decided by the Coordinating Committee on 7th August 2014, however the meeting on the 7th August 2014 was adjourned because on 7th August 2014 key Wirral Council officers involved in the decision were on holiday and couldn’t be present to answer questions. So the meeting of the 7th August 2014 was adjourned to the 23rd September 2014.
There was then an interesting meeting on the 23rd September 2014 (which was in part a repeat of the adjourned meeting on the 7th August 2014). Councillors discussed the impact of the proposed changes to the policy and witnesses were heard from and questioned.
The motions at the end of that meeting were:
1) “That Cabinet minute 37 – 7 July 2014 (Transformation of Leisure Services Sports and Leisure Facilities Pricing Structure) be upheld” (proposed by Cllr Moira McLaughlin and seconded by Cllr Paul Doughty)
and the proposed amendment (proposed by Cllr Chris Blakeley and seconded by Cllr Mike Hornby) was
2) “That this Committee, having heard evidence this evening, stands unconvinced that any potential saving (the achievement of which remains dubious) made by implementing the decision at paragraph 3 of the Cabinet report, outweighs the harm this decision will do to Wirral’s reputation as an Authority which takes seriously its duties under the Military Covenant and as an Authority that does all it can to actively uphold and advance the Covenant.
Therefore, this Committee urges the Cabinet to reconsider its decision and restore the free Leisure Passes to all the veterans of Her Majesty’s Armed Forces.”
The vote on the amendment was 6 votes for (5 Conservative, 1 Lib Dem) and 9 votes against (9 Labour councillors).
The amendment was therefore lost.
The vote on the original motion was 9 votes for (9 Labour) and 6 votes against (5 Conservative, 1 Lib Dem).
The original motion/recommendation was therefore carried.
At the start of the meeting both Cllr Mike Hornby and Cllr Walter Smith declared interests as former members of the Armed Forces.
The Cabinet Member (not part of the committee but a witness) Cllr Chris Meaden declared an interest as her daughter is a former member of the Armed Forces.
Cllr Paul Doughty (the Vice-Chair) declared an interest as his late father had been in the Armed Forces.
There is then an “anomaly” (as Surjit Tour would put it) identified at this point.
Cllr Chris Meaden (the Cabinet Member) declared an interest as her daughter is a former member of the Armed Forces at the Coordinating Committee on the 23rd September 2014 which reviewed the earlier decision of Cabinet (of which she was one of the Cabinet Members present) on the 7th July 2014.
Certainly the video (below) of that Cabinet meeting in July shows Cllr Chris Meaden both present and speaking on that item which fell under her portfolio.
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The video footage of declarations of interest was earlier in that meeting (see below)
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However in Cllr Chris Meaden’s defence, this item did come near the end of a long Cabinet meeting held in the evening. Politicians do get tired and overlook things. She [Cllr Chris Meaden] referred to a conversation with Surjit Tour (who is Monitoring Officer) at the Coordinating Committee meeting in September. By the way she was talking then she seems to realise it was an oversight on her part and was trying to make amends by declaring the interest instead at the Coordinating Committee meeting in September, when it should have happened at the Cabinet meeting on the 7th July.
Declaring interests is one of the few bits left of the Councillor’s Code of Conduct on which separate legal provisions apply. It’s also a personal legal responsibility of politicians, so they can’t pass the buck to someone else or blame them. The guidance from the DCLG titled Openness and transparency on personal interests A guide for councillors issued in September 2013 states in reference to councillors starting at the bottom of page 4:
“One of these is the principle of integrity – that ‘Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.’”
By my reading of the rules, this interest would be classed as a “personal interest” not a “prejudicial interest”. Therefore even had she declared this on the 7th July 2014, she would still have been able to take part and vote in that agenda item. Had it been an undeclared pecuniary/prejudicial interest it would be a much more serious matter.
4.2 You have a personal interest in any business of the Council where it relates to or is likely to affect:-
(i) any body of which you are a Member or in a position of general control or management and to which you are appointed or nominated by the Council;
(ii) any body:-
(a) exercising functions of a public nature;
(b) directed to charitable purposes; or
(c) one of whose principal purposes includes the influence of public opinion or policy (including any political party), of which you are a member or in a position of general control or management.
4.3 You also have a personal interest in any business of the Council:-
(i) where a decision in relation to that business might reasonably be regarded as affecting your well-being or financial position or the well-being or financial position of a relevant person to a greater extent than the
majority of other council taxpayers, ratepayers or inhabitants of the electoral division or ward, as the case may be, affected by the decision, or,
(ii) it relates to or is likely to affect any of the interests you have registered as a disclosable pecuniary interest.
Sensitive Interests
4.4 Where you consider that disclosure of the details of an interest could lead to you, or a person connected with you, being subject to violence or intimidation, and the Monitoring Officer agrees, if the interest is entered on the Register, copies of the Register which are made available for inspection and any published version of the
Register will exclude details of the interest, but may state that you have an interest, the details of which are withheld.
Disclosure and participation
4. At a meeting where such issues arise, DO declare any personal and/or professional interests relating to your public duties and DO take steps to resolve any conflicts arising in a way that protects the public interest.
5. Certain types of decisions, including those relating to a permission, licence, consent or registration for yourself, your friends, your family members, your employer or your business interests, are so closely tied to your personal and/or professional life that your ability to make a decision in an impartial manner in your role as a member may be called into question and in turn raise issues about the validity of the decision of the authority. DO NOT become involved in these decisions any more than a member of the public in the same personal and/or professional position as yourself is able to be and DO NOT vote in relation to such matters.
Just in case someone thinks I’m singling Cllr Chris Meaden out for criticism. At a recent meeting last week Cllr Leah Fraser was present at a meeting of the Wallasey Constituency Committee Working Group when a decision (following a recommendation from the Merseyside Police) over whether to spend money on Ian Fraser Walk in New Brighton was made. As far as I can as I was present throughout the whole of the meeting, I don’t remember her declaring an interest in that agenda item (although I may not have heard her if she did).
Ian Fraser Walk is in fact named after her late father-in-law but she didn’t declare an interest. However whether Cllr Leah Fraser should have to declare a personal interest in whether money is spent on a stretch of promenade named after her late father in law is another matter.
If I wend through all the times councillors had failed to declare personal interests, it would be a very long list! Some are like the last example somewhat subjective. It’s more when councillors actually fail to declare prejudicial interests and then speak and vote on agenda items, which are the kind of major abuses that should be tackled and not happen in the first place.
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UPDATED: 9 Labour councillors vote to continue to next stage of consultation on closing Lyndale School despite concerns raised
UPDATED: 9 Labour councillors vote to continue to next stage of consultation on closing Lyndale School despite concerns raised
Councillor Tony Smith (Cabinet Member for Children and Family Services) at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School which was being reviewed by the Coordinating Committee on 2nd October 2014 L to R Cllr Stuart Whittingham, Cllr Tony Smith (Cabinet Member for Children and Family Services), Cllr Bernie Mooney and Lyndzay Roberts
Wirral Council’s Coordinating Committee (which comprises fifteen councillors, two parent governor representatives, a Catholic rep, is required to have an Anglican rep but at this stage I don’t really know why there isn’t one), met on the evening of 2nd October to reconsider the Cabinet decision of 4th September 2014 which made a decision to consult on closure after the “consultation” earlier this year. Neither of the two parent governor representatives (who have speaking and voting rights) nor the Catholic representative (who also has speaking and voting rights) were present.
According to correspondence received hours before the meeting, a senior Wirral Council officer stated they have previously tried to persuade the Church of England to appoint an Anglican representative, but have failed and refers to this as merely an “anomaly”.
Here is the list of the people who made the decision itself and were there on the night, including matters such as whether they are spokesperson, Chair, Vice-Chair and which political party. I have listed people who are on the committee first, it is unclear to me who the Conservative spokesperson was or whether it was Cllr Bruce Berry or Cllr Leah Fraser who was deputising for him:
Labour
Cllr Moira McLaughlin (Chair), Labour
Cllr Paul Doughty (Vice-Chair), Labour
Cllr Janette Williamson, Labour
Cllr Michael Sullivan, Labour
Cllr Denise Roberts, Labour * note deputy for either Cllr Phillip Brightmore, Cllr Anita Leech, Cllr Christina Muspratt or Cllr Jerry Williams
Cllr Harry Smith, Labour * note deputy for either Cllr Phillip Brightmore, Cllr Anita Leech, Cllr Christina Muspratt or Cllr Jerry Williams
Cllr James Crabtree, Labour * note deputy for either Cllr Phillip Brightmore, Cllr Anita Leech, Cllr Christina Muspratt or Cllr Jerry Williams
Cllr Ron Abbey, Labour * note deputy for either Cllr Phillip Brightmore, Cllr Anita Leech, Cllr Christina Muspratt or Cllr Jerry Williams
Conservative
Cllr Wendy Clements, Conservative
Cllr Tom Anderson, Conservative
Cllr Steve Williams, Conservative
Cllr Bruce Berry, Conservative * note deputy for either Cllr Chris Blakeley or Cllr Mike Hornby
Cllr Leah Fraser, Conservative * note deputy for either Cllr Chris Blakeley or Cllr Mike Hornby
Lib Dem
Cllr Phil Gilchrist, Liberal Democrat spokesperson
So to summarise, that is eight people on the committee and seven deputies substituting for people who are on the committee but chose to send a deputy in their place for reasons best known to themselves.
Ultimately the decision taken at the end of a long meeting (there were a series of votes at the end on whether to uphold the decision or refer it back to Cabinet to reconsider based on concerns councillors had) was to uphold the Cabinet decision of the 4th September 2014. This was taken on a majority of 9 votes to 6. Each of the alternative recommendations failed on a vote of 6 to 9. The alternative recommendations which were lost were proposed by by Cllr Phil Gilchrist (Lib Dem spokesperson) and Cllr Steve Williams (Conservative councillor).
Labour councillors (9) voted to uphold the Labour Cabinet decision. The joint votes (6) of the Conservative councillors (5) and Liberal Democrat spokesperson (1) voted against Labour’s recommendation.
Although six councillors were in favour of not implementing the Cabinet decision of 4th September and referring it back to Cabinet with their concerns, they were outvoted by the nine Labour councillors who voted against.
This means the Director of Childrens Services, Julia Hassall can now go ahead to the next stage of closing the Lyndale School which is a short consultation (lasting about a month). Even if Wirral Council were taken to court over this matter, Surjit Tour made it quite clear in a formal letter to me that they would not pause the process and would just carry on doing this, regardless of many outstanding legal concerns. In the interests of transparency at this point, I refer to the exchange of letters between myself (mainly the one of 8th September 2014) and Surjit Tour in this matter about the possibility of legal action through the courts.
He is of course entitled to his opinion on this matter, so am I. He has to work within the policy and budget framework of Wirral Council and is in a politically restricted post, I have to consider other concerns such as financial, legal, political and commercial (it’s complicated basically).
Following this consultation Wirral Council’s Cabinet will make a further decision at some future point on closure of the Lyndale School. As it was such a long meeting and negotiations over potential access to Wirral Council’s wi-fi network for live broadcast of meetings as they happen have stalled, only part of the footage of the five-hour meeting at the time of writing has been uploaded. You can watch video of part of the meeting below.
On a more personal note and this is just my opinion, I would like to point out (briefly) that politics comprises objective and subjective tests that can be applied when determining decisions.
Nobody expects politicians to be experts as they are there to represent the public interest. In certain areas such as law and other areas they have to rely on the internal advice of Wirral Council officers. That is why officers giving advice are in politically restricted posts and can’t really be seen to be taking sides in a party political matter.
Although it would be unlawful to drop Lyndale School’s budget by more than 1.5% under the minimum funding guarantee regulations this year (2014-15) compared to its 2013-14 budget, the government is currently consulting on draft regulations which would remove this current protection under the minimum funding guarantee for SEN places in 2015-16. However there is a current consultation on regulations which cover 2015-16 and the draft regulations put to Parliament may differ from those being consulted on.
In fact you only have to look at how the regulations on filming meetings of Wirral Council changed after the consultation and lobbying by people such as myself to show that that is a distinct possibility.
However how much Lyndale School receive this year for the education of children there and in future years is down to a complicated combination of the Wirral Schools Forum, Cabinet, Council and other factors beyond anybody’s reasonable control. A schools formula is arrived at locally by a combination of the Wirral Schools Forum, Cabinet and Council. This schools formula determines how much each individual school gets each year (and is changed each year).
In essence though, this shouldn’t really be about money. The law allows Wirral Council to close a school, however naturally they have to plan for what happens next to the existing pupils. Some will transfer to secondary school well before the planned closure date of January 2016. This should really be about the children of Lyndale School.
I will recite a little personal history here. My primary school was changed (when I was 10), not because of closure but because my parents had moved three miles away and transport to and from school was taking my mother longer than it was when I only lived a mile away.
Therefore my perception of what happens to a primary aged child when you do this to them, is somewhat clouded by that. Twenty-four years later, I still resent that decision, as I do not feel my interests were properly considered especially considering the fact I would’ve left that primary school within the next twelve months to go to secondary school and that we had moved house many years previous.
I can understand though that it resulted in a reduced carbon footprint as I could walk to the school I was transferred to. It ended up with me being admitted to hospital for a week though and knowing how much that costs makes it a false economy.
The children of Lyndale School are more fragile than I was at aged ten. Wirral Council identify themselves in a Equality Impact Assessment that the disruption will have an effect on the children.
However a letter from their legal department takes the contrary view that any potential risks can be mitigated against. Personally I have no confidence in Wirral Council that the potential risks have been mitigated at this stage, as my feeling is that such detailed planning won’t actually happen until a decision to close (or not close) the Lyndale School has been finally made at some future point. At this stage officers may consider behind the scenes that spending officer time and resources on planning for something that might not happen would not be value for money. However all scenarios should be explored if Wirral Council insists on going down this route.
Considering the high costs already expended by Wirral Council on their plan to close Lyndale School, one wonders if that seemingly large and endless budget allocation had instead been used for keeping the Lyndale School open, whether it would’ve been a better use of public funds. Each time they hold a public meeting it costs thousands of pounds and there have been many of these so far. Such is the price of democracy I suppose which has deliberately made closing a school a long and drawn out process so that a “spanner can be put in the works” to stop it at any one of many stages.
Some people are surprised it has not been stopped before now. However looking at the wider aspects of the way society treats disabled people, prejudice and other matters I am not wholly unsurprised by this course of events.
Below is a playlist from when the meeting started. When the video was shown due to an outstanding unresolved copyright claim regarding one of the two pieces of music used in it by Sony Music Entertainment, the video has sadly had to be edited out of the footage of the meeting. However it can be viewed elsewhere online.
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What did Wirral Council’s response to my letter about the Lyndale School Cabinet decision on 4th September say?
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
I have received a full response to my letter of the 8th September 2014 to Wirral Council about the Cabinet decision on the 4th September 2014 about the decisions on Lyndale School. This letter was received after the 24th September 2014 deadline in the letter of the 8th September 2014, although an earlier letter was also received stating that this letter would happen by the 1st October 2014. I have yet to consider my response to Wirral Council’s letter of the 30th September 2014 which is below.
The letter of 30th September 2014 is included below as is, there are some missing full stops and unnecessary apostrophes which have been printed as they were in the original letter.
For information I include it below. I am considering my options as to what to do next. The protocol states that an “application for judicial review must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose”.
That’s 3 months from 4th September 2014 so a maximum time limit of 4th December 2014. However it would be inadvisable to wait that long as permission would be denied for not being done “promptly”!
Personally I feel that we’re getting soon to the date when “promptly” would be an issue (although maybe that explains Wirral Council’s tactics). The call in has put implementation of the decision on hold until at least the 2nd October 2014.
For the ease of converting to HTML some minor formatting has been lost as to how it was laid out in order to get this published promptly. A line of equals signs represents the end of an A4 page.
(Wirral Council logo)
Department of Transformation & Resources
Joe Blott Strategic Director of Transformation &
Resources
Town Hall, Brighton Street
Wallasey, Wirral
Merseyside, CH44 8ED
DX 708630 Seacombe
Website: www.wirral.gov.uk
date 30 September 2014
By Email and Post
to Mr John Brace
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
your ref
my ref
service Legal and Member Services
tel 0151 691 8569 Please ask for Surjit Tour
fax 0151 691 8482
email surjittour@wirral.gov.uk
Response to Pre-Action Protocol letter
Dear Mr Brace
I write further to your letter before claim dated 8 September 2014. For the avoidance of doubt, this letter constitutes Wirral Metropolitan Borough Council’s (“the Council”) formal response in accordance with the Pre-Action Protocol for Judicial Review.
1. The Claimant
The proposed Claimant is Mr Brace; who is unrepresented.
2. The Proposed Defendant
The proposed Defendant is Wirral Metropolitan Borough Council.
3. Reference details
Wirral Metropolitan Borough Council: Surjit Tour, Department of Transformation and Resources, Town Hall, Brighton Street, Wallasey, Wirral, CH44 8ED
The Council’s in-principle decision of 4 September 2014 to publish statutory notices in respect of the closure of Lyndale School (“Lyndale”) from January 2016.
5. Response to the Proposed Claim
The Council denies Mr Brace’s claim for the reasons detailed below.
7. Address for further correspondence and service of court documents
Please address any further correspondence in this matter to Surjit Tour.
8. Background
8.1 Lyndale School is a special school providing specialist educational provision for primary aged pupils, the majority of whom have Profound and Multiple Learning Difficulties (“PMLD”). There are 21 pupils currently on the roll, nine of whom will be transitioning to secondary school by the end of the 2015/16 academic year. The declining number of students admitted to Lyndale over recent years has drawn into question The Lyndale’s financial viability for the future.
8.2 In 2013 the Department for Education (“DfE”) radically reformed the way in which funding for High Needs pupils is provided. Previously, funding was based significantly on the number of places available at a school rather than the number of pupils actually attending. The new system places a far greater emphasis on the number of pupils attending and their specific needs. Lyndale has set a balanced budget for 2014/15 for 40 places and 23 pupils. Applying the new intended future DfE funding arrangements, Lyndale may only be funded for 23 places, a reduction of £170,000. This shortfall would only increase as the number of pupils reduces. Funding this shortfall would not be possible without a significant reduction in funding for other schools in the area.
8.3 In addition, there are two other primary schools, namely Stanley and Elleray Park which are rated as providing good and outstanding education to students with complex learning difficulties, some of whom will have PMLD.
8.4 The Report presented to Cabinet details why the option to expand Elleray Park and Stanley Schools was the most viable option and therefore we do not propose to go into any further detail here.
8.5 The report to cabinet on the 4th September 2014 contains information on the background history of CLD/PMLD provision. The report also details the responses to the consultation and the independent consultant’s report. A link is provided for your information:
8.6.1 (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;
8.6.2 (2) Having reviewed the responses received during the consultation process, analysed the alternative options and applied the SEN Improvement Test, it is recommended that:
8.6.2.1 Statutory notices be published in respect of the closure of The Lyndale School from January 2016.
8.6.2.2 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:
(a) – Elleray Park Special School
(b) – Stanley Special School
(c) – Another appropriate school
8.6.3 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).
8.6.4 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.
8.6.5 A further report be brought on the outcome of the publication of the statutory notices.
8.6.6 The Director of Children’s Services to ensure that Education, Health and Care Plans for all pupils of The Lyndale School are completed by 31st October 2014.
8.7 I respond to each of your proposed grounds of challenge as below.
9. Cabinet meeting notice requirements
9.1 You state in your letter that the Council has not complied with Regulations 8-9 of the Local Authorities (Executive Arrangements)(Meetings and Access to Information)(England) Regulations 2012 set out below as the document specified in Regulation 9 was not published.
9.2 Regulation 8
9.2.1 (1) In these Regulations a “key decision” means an executive decision, which is likely–
9.2.2 (a) to result in the relevant local authority incurring expenditure which is, or the making of savings which are, significant having regard to the relevant local authority’s budget for the service or function to which to which the decision relates; or
9.2.3 (b) to be significant in terms of its effects on communities living or working in an area comprising two or more wards or electoral divisions in the area of the relevant local authority.
9.2.4 (2) In determining the meaning of “significant” for the purposes of paragraph (1) the local authority must have regards to any guidance for the time issued by the Secretary of State in accordance with section 9Q of the 2000 Act (guidance).
9.3 Regulation 9
9.3.1 (1) Where a decision maker intends to make a key decision, that decision must not be made until a document has been published in accordance with paragraph (2), which states–
9.3.2 (a) that a key decision is to be made on behalf of the relevant local authority;
9.3.3 (b) the matter in respect of which the decision is to be made;
9.3.4 (c) where the decision maker is an individual, that individual’s name, and title if any and, where the decision maker is a decision-making body, its name and a list of its members;
9.3.5 (d) the date on which, or the period within which, the decision is to be made;
9.3.6 (e) a list of the documents submitted to the decision maker for consideration in relation to the matter in respect of which the key decision is to be made;
9.3.7 (f) the address from which, subject to any prohibition or restriction on their disclosure, copies of, or extracts from, any document listed is available;
9.3.8 (g) that other documents relevant to those matters may be submitted to the decision maker; and
9.3.9 (h) the procedure for requesting details of those documents (if any) as they become available.
9.3.10 (2) At least 28 clear days before a key decision is made, the document referred to in paragraph (1) must be available for inspection by the public–
9.3.11 (a) at the offices of the relevant local authority; and
9.3.12 (b) on the relevant local authority’s website, if it has one.
9.3.13 (3) Where, in relation to any matter–
9.3.14 (a) the public may be excluded under regulation 4(2) from the meeting at which the matter is to be discussed; or
9.3.15 (b) documents relating to the decision need not, because of regulation 20(3), be disclosed to the public,
9.3.15 the document referred to in paragraph (1) must contain particulars of the matter but may not contain any confidential, exempt information or particulars of the advice of a political adviser or assistant.
9.4 It is accepted that the “in-principle” decision is a “key decision” under Regulation 8 and therefore the Council must comply with Regulation 9.
However the Council has fully complied with Regulation 9 by publishing the Forward Plan for the period of August 2014 to November 2014.
9.5 The Forward Pan specifically identifies the “Outcome of Lyndale School Consultation” as a key decision and therefore complies with Regulation 9(1)(a) and (b).
9.6 Further, in compliance with Regulation 9(c), page two of the Forward Plan lists the names of the Cabinet members who would be making the decision. It also identifies that the decision is expected to be taken in September 2014 in compliance with Regulation 9(d).
9.7 In relation to Regulation 9(e)-(g), therefore were no reports available at the time the Forward Plan was published, however they were made available in advance of the Cabinet meeting.
9.8 For these reasons, the Council considers your point here to be without foundation.
10. Cabinet decision take by the wrong people
10.1 Your letter states that regulations require a member from the Church of England and Roman Catholic diocese to be appointed to the Council’s Families and Wellbeing Policy Committee and Coordinating Committee (“the Committees”). These committees review, amongst other things, the Cabinet’s decisions on education matters. As such they are “education overview and scrutiny committees” as defined in Regulation 13(1) Local Authorities (Committee System)(England)(Regulations) 2012 and must therefore comply with the requirements in the Regulations.
10.2 Specifically, Regulation 13(2) states that the “committees must have at least one qualifying person” which is defined in Regulation 13(3) as “the person nominated by the Diocesan Board of Education for any Church of England diocese.” Regulation 13(4) and (5) has the same provision in relation to Roman Catholic diocese. This is accepted by the Council.
10.3 However, you further state that as a Church of England diocese member was not appointed to the Committees, a member should have been appointed to the Cabinet. This is not required by any of the Regulations quoted in your letter, nor any other statutory provisions.
10.4 You claim that a Church of England diocese member was neither appointed to the Committees nor the Cabinet when the “in-principle” decision was made on 4 September 2014 that such decision is in someway invalid or defective. We set out below why the Council considers this is completely unfounded.
10.5 Firstly, Table 1, Point 18 of the Council’s Constitution states that the Executive has the authority “to consider and determine statutory proposals relating to the establishment and discontinuance of schools.” As you are no doubt aware, the Executive is comprised of the Leader of the Council and the Cabinet. Secondly, as referred to above, Diocese members are only required to be appointed to the Committees whose function is to review decision relating to decision. Furthermore, the role of the Committees is to scrutinise decisions of the Cabinet and, if necessary, recommend that Cabinet reconsider the decision. The Committees have no authority to nullify the decision of the Cabinet.
10.6 The Cabinet was not required by any regulation or statutory provision to appoint a diocese member and had absolute authority to take the decision in this matter. Any claim to the contrary in entirely without foundation.
10.7 However, as stated, the Council is aware that it is required to have a Church of England diocese member on the Committees. To this end, we have contacted the diocese on numerous occasions in order to receive an appropriate nomination from them. As yet, a nomination has not been received despite the Council’s best efforts. This is due to no fault of the Council and as stated above, this anomaly does not invalidate the decision taken by the Cabinet on 4 September 2014.
11. Human Rights
The Council is fully aware of its obligations under the Human Rights Act 1998 (“HRA”) and the European Convention on Human Rights (“ECHR”) and ensures that all decisions it makes are fully compliant with these.
The Council refutes any suggestion that there has been a breach of the human rights of any children by the decision under challenge, for the reasons set out below.
11.1 Protocol 1 (Article 2) – Right to education
11.1.1 The assertion that the Council is denying the children of Lyndale the right to an education is entirely without merit. Article 2 of Protocol of the ECHR does not provide a pupil of an educational institution with the right to receive an education or be taught at a specific institution. It merely provides that a pupil must have access to the education system. No child currently at Lyndale is being, or will be, denied access to an education.
11.1.2 In addition, case law has established that local authorities have the discretion to allocate resources how they deem fit when arranging education provision, provided that a pupil is not denied access to the education system, which has not happened in this case.
11.1.3 No final decision has been made in relation to whether to close Lyndale or not. No child will be denied the right to continue their education and so will not be denied access to the system Therefore, there is no legal basis for this alleged ground of challenge.
11.2 Article 2 – right to life
11.2.1 To establish that this Article is engaged, you would have to demonstrate that either; a) the Council were deliberately trying to end the lives of the pupils; or b) we ought to be aware that there was a real and immediate risk to the lives of the pupils were they to be moved to alternative educational provision.
11.2.2 No decision has yet been made in relation to any specific pupil transferring to an alternative educational provider. Therefore this ground of challenge is entirely baseless.
11.2.3 Any suggestion that the Council are deliberately trying to end the lives of the children is simply untenable and there is no evidence to suggest that there is a real and immediate risk to their lives given that no decision has been made to transfer any child to an
alternative educational provider. This ground of challenge is therefore completely unfounded.
11.3 Article 3 – prohibition of torture
11.3.1 The Council denies that the children of Lyndale would be subject to torture, inhumane or degrading treatment.
11.3.2 Torture is defined as “deliberate inhumane treatment causing very serious and cruel suffering.” It is refuted that the children of Lyndale would be subjected to any suffering, let alone serious or cruel suffering or otherwise.
11.3.3 Inhumane treatment is defined as treatment “causing intense physical and mental suffering.” There is no evidence to suggest that any children will be subjected to physical or mental suffering.
11.3.4 Degrading treatment is “treatment or punishment” which “humiliates and debases” the victim. The Council’s in-principle decision to publish a statutory closure notice cannot in any way be described as a decision designed to humiliate or debase the children of Lyndale.
11.3.5 You have provided no evidence to substantiate this claim and is it entirely without merit.
11.4 Article 11 – freedom of assembly
11.4.1 Your reference to this Article is unclear and the Council considers that the Article is not engaged in this matter in any event.
11.5 Article 14 – prohibition of discrimination
11.5.1 This Article is only engaged if a breach of another Article is proven. Given the difficulties, set out above, that you would have to sustain an argument that any of the above Articles have been breached, the Council denies that Article 14 is relevant.
11.5.2 You suggest in your Letter before Claim that the political views of the parents were discounted and that this, in some way, led to Article 14 being engaged. This is denied given the points raised above however we wish to point out that the views expressed by the parents during the consultation process were taken into account in this matter as demonstrated by the summary of the responses considered by Cabinet (which is publicly available online). The Council refutes the suggestion that differing political views affected the decision and denies that any individual or group has been discriminated in any way by its “in-principle” decision.
11.5.3 Further, your reference to children being born disabled is unclear.
12. Equality Act 2010 (“Equality Act”)
12.1 Section 13
12.1.1 You have provided no evidence to sustain an allegation that less money would be spent on the education of the Lyndale children if Lyndale were to close, therefore the Council considered this allegation unfounded.
12.1.2 As mentioned in the Cabinet Report, the net result of a potential closure of Lyndale would be a £33,470 budget surplus. If the Council made a final decision to close Lyndale after completing all of the 5 stages of the statutory processes this could be shared across all remaining schools who would stand to gain £3,347 additional funding each.
12.1.3 The Council does not hold any information relating to the protected characteristics of any staff members of Lyndale. If you require this information we suggest you make further contact with the School direct.
This information is not held by the Council but the governing body of the school
12.2 Section 15
12.2.1 The aim of this process is to secure the highest standard of education possible for the children of Lyndale. In order to secure this, the Council has a duty to ensure that the provision of the education is affordable in the long-term. Your assertion that this is not a legitimate aim for the purpose of the Act is without foundation.
12.2.2 The Council has consulted extensively with interested parties, including staff, parents, Governors and the general public with regard to the potential closure of Lyndale and will continue to invite representations from such parties during the representation stage of the Statutory process. Having considered these views and the report which considered the SEN Improvement Test which was applied to a range of different options it has been decided, in principle, that the closure of Lyndale is the most proportionate means of achieving the legitimate aim set out in the 4th September cabinet report.
12.3 Section 19
12.3.1 This argument is legally flawed as, pursuant to s.19(1) Equality Act, the parents would have to possess a relevant protected characteristic. You have provided no evidence of this.
12.4 Section 26
12.4.1 The allegation that the Council has in any way violated the dignity of the persons affected by its decision, whether the children or otherwise, is entirely misconceived and without foundation and is not supported by any evidence.
12.4.2 Further, there is no evidence that any current or previous members of staff at the school have been intimidated by any members of the Council.
12.5 Section 27
12.5.1 For this section to be engaged, the Council would have had to have subjected the parents to a detriment directly because they have threatened legal proceedings. As far as the Council is aware, no legal proceedings have been issued.
12.5.2 You have provided no evidence of this and therefore your claim is unfounded. In any event, the Council denies that any parents have been subject to a detriment.
12.6 Sections 85 and 86
12.6.1 Your claim in relation to these sections are also without foundation as you have provided no evidence to suggest that any children will be subject to a detriment as a result of this decision.
12.6.2 Furthermore, the Council has consulted a wide range of interested parties on a number of different options to ensure that all consultees were aware of the different proposals that the Council wished to consider prior to making an appropriate “in-principle” decision that would lead to the children continue to receive the highest standard of education.
12.6.3 In addition, the decision to commence the statutory process to publish a closure notice to close the school from 2016 is not determinative that the school will be closed or that the children will be moved to another school which is specifically designed to provide education to pupils with special educational needs and other disabilities. On that basis, the children will suffer no detriment as a result.
12.6.4 Further, the allegation that children are being penalised for their parents’ opposition to the proposals, or for any other reason, is entirely without foundation. This is simply incorrect and there is no evidence to support such a spurious allegation.
12.7 Section 112
12.7.1 The Council strenuously denies any breach of the Equality Act, therefore your point in relation to this section has no legal foundation.
12.8 Section 149
12.8.1 For the reasons set out at paragraph 14 below, the Council has clearly discharged its public sector equality duty under the provision of the Act.
12.9 Section 158
12.9.1 The Council accepts that the pupils at Lyndale have educational needs that are different from the needs of pupils in mainstream education. However, you state in your letter that pupils with Profound and Multiple Learning Difficulties (“PMLD”) form a small minority of the school population. This is not the case, there are 21 pupils on the roll at Lyndale, 18 of which are diagnosed as having PMLD.
12.9.2 In dealing with your point, we reiterate that the level of education provided to the children will not be affected by the proposals.
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13. Disability Discrimination Act 1995 (“DDA 1995”) and the Disability Discrimination Act 2005
13.1 I do not propose to respond in detail to the provisions referred to in the above Acts given that both were repealed by Schedule 27(1) Paragraph 1 of the Equality Act.
13.2 As a gesture of goodwill, I have listed below the points you have raised in relation to these Acts that are covered by the new Equality Act.
13.2.1 Sections 21B, 28B, 28C and 28F DDA 1995 are now covered by s.13 Equality Act.
13.2.2 Sections 21D and 49A DDA 1995 are now covered by s.149 EA 2010.
13.3 I have responded to the points raised under the new provisions above.
14. Equality Impact Assessment (“EIA”)
14.1 As mentioned above, the Council is fully aware of its public sector equality duty to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations between persons with a protected characteristic and those without.
14.2 In order to comply with this, the Council commissioned an EIAs which commenced on the 6th December 2013 and further reviewed on the 6th August 2014. The purpose of the EIA was to ensure that the Cabinet was fully aware of any equality implications when considering a proposal that Lyndale may close before making an in principle decision to public a statutory closure notice.
14.3 The EIA, which is publicly available online, assesses the impact that the proposals could have on pupils; staff at both Lyndale and other schools; and the parents of children affected by the decision. The EIA refers to the potential positive impact that the proposals could have on the children concerned, for example they may be provided access to new and varied opportunities, and steps that can be taken to ensure there are no negative consequences.
14.4 The members of the Cabinet had access to the EIA documents and reviewed both of them prior to making its decision of 4 September 2014. As such, it is clear that the council has had “due regard” to its’ public sector equality duty under the Equality Act.
15. SEN Improvement test
15.1 The Council is fully aware of its obligation to apply the SEN Improvement test to the decision in this matter. To assist compliance with this duty, the Council instructed an independent consultant to assess all the options.
15.2 Specifically in relation to the points you raise, Table 1 and Part 7.7 of the independent consultant’s report referring to the SEN Improvement Test (which is also publicly available) indicate that both alternative schools, Stanley and Elleray Park have at least as good Ofsted judgements. This demonstrates that if in due course it is proposed that Lyndale pupils are placed in either of these schools it will not limit their access but will improve their access to high quality education and services.
15.3 The two alternative schools are special schools with staff that are suitably qualified to teach and support children although no decision has yet been made that a particular child will move to either of these alternative schools. Furthermore, if in due course the Council decides to implement a decision to close Lyndale it will look to support staff at The Lyndale in finding alternative employment. However, no decisions in this regard have been made, so this particular ground of challenge is extremely premature. However, the Council wishes to point out that no pupil’s access to specialist staff will be affected.
15.4 Part 7.7 of the Report also states that the first alternative school, Stanley, has new accommodation specifically designed to cater for children with PMLD. In particular, it has 12 large classrooms, a hydrotherapy pool and sensory facilities. The second alternative school, Elleray Park, is currently being expanded to enhance the specialist facilities that pupils with PMLD require. As such, it is clear that if a decision to close Lyndale is made in due course, pupils at Lyndale will be able to access suitable accommodation facilities at other schools in the area. This may include Elleray Park or Stanley Schools whose capacity has recently been increased.
15.5 On that basis your assertion that there will not be an improved supply of places is unfounded.
15.6 Further, reiterating what has already been mentioned in this letter, both Elleray Park and Stanley schools are special schools and are therefore more than able to receive pupils with PMLD and other complex needs.
15.7 Referring to the point you raise regarding funding, the Report clearly states that this is a viable option. Most other options lead to a budget deficit of between £26,000 and £168,000 which is financially unsustainable and would lead to a significant reduction in the quality of education provided to the pupils at Lyndale, which you will agree, is not a viable option. This proposal indicates there would be a surplus of £33,000.
16. Premature Challenge
16.1 In addition to all of the reasons stated above, the Council regards your threat of Judicial Review as being extremely premature. As is clearly stated in the Cabinet minutes, this is merely an “in-principle” decision to proceed with the statutory process.
16.2 There are still several stages of the statutory process to undergo which includes a stage whereby any person or organisation will be invited to make further representations to the Council in response to the statutory notices. The Cabinet is under a statutory obligation to consider such representations before making a final decision. It is possible, that the Council may decide not to close Lyndale School.
16.3 As these processes have not yet been completed and no final decision on the matter has been made, it is the Council’s view that any suggestion of a way of challenge by way of Judicial Review at this stage is extremely premature and unnecessary.
17. Further information
17.1 At section nine of your letter you outline numerous requests for further information. The Council’s response to each request is detailed below.
17.1.1 The Council’s Cabinet Report of 4th September 2014, its appendices and the record of the Cabinet decision of 4 September
2014 sets out fully the Council’s reasons for its “in-principle” decision.
17.1.2 The Council does not hold statistical information relating to staff at Lyndale. It is possible that Lyndale may hold such information and it would therefore be appropriate for you to deal with Lyndale direct in relation to this request
17.1.3 You have requested information relating to statistics on any protected characteristics of the Council’s workforce. The Council does hold such information, but cannot see the relevance of this request in light of the proposed grounds of challenge. Any such information is held purely based on information employees have provided about themselves to the Council as their employer and is not relevant to the in principle decision to publish a statutory closure notice.
17.1.4 In relation to your request for statistics on pupils at Lyndale – the Council can confirm that currently 21 pupils are listed on the admission the roll at Lyndale. 18 children have been diagnosed as having PMLD, three have complex learning difficulties, two are of Asian (Indian) origin and the remainder are White British.
17.1.5 The Council believes that the financial information that is publicly available as part of the Cabinet report fully discharges its duty of candour in relation to the request for a three year projection of Lyndale School’s budget.
17.1.6 Any earlier draft of the report detailing the outcome of the consultation are not relevant as officers continued to consider their report in the light of feedback and responses
18. Documents you request
18.1 At Section 10 of your letter you request a number of documents that you consider relevant. The Council’s response to each request is detailed below.
18.1.1 Please refer to Appendix 6 of the Cabinet report (which is publicly available) which contains a summary of the responses received during the consultation.
18.1.2 The Council’s response to your request for these documents is detailed at Paragraphs 17.1.5 and 17.1.6 above.
18.1.3 Six public meetings which formed part of the Council’s consultation process were held, to which all interested parties including staff and trade unions were invited to attend. Notes of these are published with the Cabinet report at Appendices 5-7.
18.1.4 As part of the Council’s consultation process it met with the Chair of governors of Lyndale and the whole governing body in separate meetings.
18.1.5 There was no report commissioned from a Principal Educational Psychologist.
18.1.6 Details of how the Council think the preferred option meets the SEN Improvement test – this is detailed extensively in the Cabinet Report, its’ appendices and Paragraph 15 above.
19.1 For the reasons set out at paragraphs 9 and 10, the original Cabinet decision of 4 September 2014 was entirely valid and therefore your request that the Council issue an undertaking to postpone proceeding with the statutory process is unreasonable and inappropriate.
19.2 Any further Cabinet meeting that takes places that considers any decision associated with the decision made on the 4 September 2014 will, of course, comply fully with the regulatory and constitutional requirements, which the Council is subject to.
19.3 The Council is committed to openness and transparency about its decision-making and from the nature of the information that is publicly available all interested parties are able to determine the full range of information the Council took into account, including the different options considered, before the decision of 4 September 2014 was made. The Council is satisfied that its decision making process to date has been transparent and open, and does not consider that a further meeting would be beneficial particularly in light of the fact that the early stages of the statutory process have not yet completed and no final decision with regard to the potential closure of Lyndale has been made.
If you are still minded to pursue a claim for Judicial Review, the Council will vigorously oppose any proceedings and seek to recover its costs of defending such proceedings. We consider the threat of such proceedings to be premature, wholly misconceived and entirely without merit for all the reasons set out above.
Yours sincerely,
(signature of Surjut Tour)
Surjit Tour Head of Legal and Member Services and Monitoring Officer
If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks:
A fictional conversation with our own legal department about Lyndale and other matters
A fictional conversation with our own legal department about Lyndale and other matters
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
Legal department: Now, there you go again! Don’t you know when you stop?! We know you’re a good at what you do but there are frankly limits to this you know! What does it take to keep your mouth shut for once!? Why are you meddling in the Lyndale matter again and making waves yet again? Just let it be!
Write about bin collection and Biffa, a consultation on closing children’s centres, Birkenhead Market and the Traffic Regulation Order issue, New Brighton & Neptune, golf (there’s an awful lot you could write about golf), councillor’s expenses, job cuts, even Kevin Adderley if you have to but please anything apart from Lyndale School! Please!!!
John Brace: Because the public have a right to know! Plus there are sound commercial reasons for doing so due to the demographic makeup of our readers/viewers.
Legal department: *sighs* Well let someone else tell them then! There are some things you just shouldn’t put in the public domain or draw attention to at this stage.
Please don’t write anything more about Lyndale connected to that letter. That is the advice.
John Brace: For how long?
Legal department: Just steer clear of anything specific with regards to that letter for obvious reasons!!!
John Brace: But even if the case was “active” (which it isn’t) s.5 of the Contempt of Court Act 1981 c.49 allows for “a publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest” …. “if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”
Legal Department: Look you indeed wrote the policy on this about keeping your mouth shut when it comes to legal matters. It complicates things. You know the reasons why.
If you write too much before a matter is even put before a court, it tips off the other side in the case as believe it or not people involved with Wirral Council read your blog and the last thing you want to do is complicate things that are complicated enough.
John Brace: True I did. For extremely sound reasons. Thanks for reminding me. However I also wrote an editorial override in that policy which requires two people to agree.
Legal Department: Well you don’t have the approval of two people yet (thankfully). The matter has been somewhat complicated by the call in anyway as the Cabinet decision will now not be implemented until a further meeting of the Coordinating Committee.
John Brace: Who’s the lead signatory?
Legal Department: Councillor Paul Hayes. However 27 other councillors have also called it in.
John Brace: Wow must be a record, so you’re saying write about other stuff?
Legal Department: Yes, or limit yourself on Lyndale to writing just about other people or just merely reporting the facts of what’s going on, preferably facts that are already in the public domain.
John Brace: So for example starting on a transcript of the Cabinet meeting on 4th September 2014 about Lyndale School for the hard of hearing?
Legal Department: That’s ok, as we have protections under libel laws from reporting on public meetings at Wirral Council which is referred to as “qualified privilege”. Anyway there’s already been a request for that. You’ve got a bit behind with subtitling videos anyway.
John Brace: But nobody’s ever threatened us with libel over Lyndale School, just about the Chief Executive’s email about the golf (later withdrawn) but I take your point about subtitling.
Legal Department: Yes, but the impression in some quarters is that you’re putting a bunch of highly inconvenient truths out there in the public domain about Lyndale School that could be easily used for party political purposes (and have been).
John Brace: Oh come on, a politician and party members at the report produced as a result of my disciplinary panel hearing said I was writing a “little read blog” or words to that effect. I’m not really that influential.
Legal Department: Exactly, but that was three years ago. Comparing September 2014 to September 2011 is like comparing apples with pears. There are thousands of people reading this blog each month now, compared with only hundreds of people a month back in September 2011. This is party because since leaving the Lib Dems you’ve spent more time at your “day job”.
Things have changed. Politicians disliked you even back then for telling the public the truth as you saw it as to what was really happening and the Lib Dem ones ended up getting somewhat censured as a result for using Wirral Council resources for party political purposes. Remember what happened to Martin Morton? Don’t end up like him!
Understandably they wanted to bury the truth (which was tied in to a conspiracy of silence on Martin Morton/Anna Klonowski/another disability matter and corporate governance issues) and cover things up for party political reasons. Even though all but one of the things that you were actually accused of were false, therefore the suspension wasn’t legitimate but as a Lib Dem politician (and former Lib Dem politician) had said this to their fellow Lib Dems they could hardly turn round and admit that any of their former politicians told lies (even though they may say that in private) could they? As you well knew at the time, they decided it was best to keep you in the party as a way to control you, as even at that stage you knew too much and you were becoming a nuisance to those in power as how they wanted things to play out.
Yours and Leonora’s resignation from the Lib Dems in January 2012 was somewhat unexpected, but resolved an ongoing conflict of interest about reporting on Lib Dem politicians and let’s face it Labour got exactly what they wanted out of this as four months later when they got a majority on Wirral Council.
Even the version of events that everybody actually agreed upon at your disciplinary panel hearing back in September 2011 was so extremely damaging to the reputation of the Lib Dem Party itself so they understandably took the “shoot the messenger”/ “rewrite history” approach and they took it out on you (as you must have expected on some level that they would do so and if you didn’t perhaps as the youngest party member in Birkenhead you needed to “grow up” and let’s face it one of the older party members at that meeting that made the decision had referred to you as a “baby” in a previous meeting which of course is not “ageist” is it?).
Your attempts at somewhat humourous comments during that meeting (which according to their own constitution and later concluded lawsuit was indeed a flagrant breach of their own party’s constitution to even hold (as you pointed out to them at the time but they once again ignored you)) but hey they’re Lib Dems and it seems that their own rules can be twisted by themselves beyond breaking point in an abuse of power) about a dead dog and a shooting at your disciplinary panel, were in extremely poor taste considering two of the people who had been shot at were actually at the meeting itself. It’s a party that would prefer to forget Jeremy Thorpe and how much of a PR nightmare that was for them (even though he was acquitted in a court) and to be honest with you were somewhat goading them into having to explain themselves because they’d been all instructed to keep their mouths shut and stick to a “party line” when you previously had asked them questions.
Let’s face it you sued an entire party (and won) and took a politician to court (and won)! How many people ever do that? Not many! You’re unusual, even when during the meeting in June 2011 when they tried to suspend you your threats of legal action and “seeing them in court” seemed to them like bluster so one of them laughed (which is partly why you got kicked at under the table and then slapped in the face but then people can lose their cool at party political meetings) and even though you later did have the judiciary intervene, your repeated warnings fell on completely deaf ears because they had (especially the politicians) made their minds up as to what to do before the meeting even started and were going to stick to this agreed party line.
That is part of the reason why you weren’t allowed to attend your own disciplinary meeting. By deliberately starting it late, it gave a chance for the decision to be made before the meeting had even started and in a way where you’d have no influence over the outcome.
You know as well as I do that two former Lib Dem councillors were being used as proxies as part of a renewed Labour plot to blacken your name and make things up about you (because let’s face it you were fast becoming a threat to the Labour Party too and deemed to be less of a threat to them if you weren’t a member of another rival political party) Let’s face it Cllr Harry Smith had already had a right moan to both you and the party about you (including a “With Compliments” Wirral Council slip with his letter) about telling the public in a party political publication delivered to the Bidston & St. James area that he wasn’t (when he was Vice-Chair) at a Pensions Committee meeting of Wirral Council at the time when it was reported that the Pension Fund dropped by around £700 million and let’s face it if the Fund drops considerably the difference has to be made up by the taxpayer).
Cllr Harry Smith felt it was terribly unfair that people were going along to his councillor’s surgery and asking him pointed questions about why (even though he was Vice-Chair of the Pensions Committee) that the Merseyside Pension Fund had dropped by so much. Let’s face it it is a fund that affects over a hundred thousand people and even the local newspapers reported it at the time.
If Cllr Harry Smith wishes to go on holiday, miss a public meeting and not even send a deputy along to a meeting and then somewhat unfortunately get suspended as a councillor (in an unrelated matter) for a week for bullying other people, well as we all know from past experience these type of people are exactly the kind of person the Liberal Democrat Party have to take seriously because they’d rather the likes of Councillor Harry Smith were getting irked at someone else instead of at them!
This goes so far as even if it seems like they’re breaking their own party rules by pandering to another political party’s interests in that process because as we all know Lib Dems love their “due process” even if that results in an “abuse of power” or a “court case”.
John Brace: However in perhaps a flagrant breach of etiquette I will say that during that particular meeting and I won’t state who (other than it wasn’t me or Leonora) said that Councillor Harry Smith moaning about someone else for holding him to account was like “the pot calling the kettle black” and let’s face it Cllr Harry Smith has been referred to by one of his fellow Labour councillors as “royalty”.
That is partly why the renewed plot in 2011 had to be done through two Lib Dem proxies.
Let’s face it if you do anything in politics, you will attract more complaints, even fictional ones. If a party spends hours looking into every fictional complaint however trivial it is time that is not spent delivering leaflets or winning elections.
The actual politicians attracted far more complaints than I ever did (even during my brief years as a politician over in Liverpool) and although they never went so far as to suspending them from the party they did exactly the same thing to them in removing them from all committee positions and blackening their name in public. They tried to embarrass them into toeing a party line and it backfired, just look at how disastrous the libraries matter was handled and the resultant public inquiry led by Sue Charteris. It made the fromer Lib Dem politician that said in public that Wirral Council would be “vindicated” by the public inquiry look to be completely wrong.
But let’s face it if they’re taking the likes of the Labour’s Councillor Harry Smith seriously (even his own party has had concerns about him to put it mildly), it is seriously the thin end of the wedge from a party political perspective.
After all once people start getting beaten up and shot at for political reasons, it’s gone well beyond being politics and become the realms of terrorism. It’s moved well beyond merely political debate into law and order issues.
As I know myself from bitter personal experience in that court case the Lib Dems were not on the side of law and order (hence why the whole political party has a County Court court order against it), they have known links to foreign terrorism, which makes them people better not to associate with if at all possible.
This “paragon of virtue” in Councillor Harry Smith, who of course would never do things for party political purposes, is of course the kind of person the Liberal Democrats obviously have to listen seriously to, take his concerns seriously and let’s face it Cllr Harry Smith seriously wanted me out of the way.
He wanted to be reselected by his local Labour branch and complaining about me and eventually many years later persuading the Lib Dem Party to pick someone else in Bidston & Saint James who was less trouble to him (let’s face it how much trouble are you if you finish last in an election?) which they eventually they did in 2012 is all part of what led to Labour getting a majority on Wirral Council. The easiest way for them to achieve this was to destabilise the Lib Dems (which let’s face it wasn’t too hard and such tactics wouldn’t work as well on the Tories).
During that court case in 2011-2012, one of their party (Lib Dem party) employees that was someone high up in the party in fact he was Chief Executive, being paid the same salary as an MP, was around that time serving out his period of notice. Another party member working in party HQ seemed to want to scapegoat him, which I of course meddled in and prevented from happening by making an undefended application to the court and dragging a Judge in the County Court into the whole matter because to be honest by then it had gone beyond the actions of one person by then into an issue about a extremely badly run organisation. The Lib Dem Party of course want to make this former Chief Executive Chris Fox a member of the House of Lords (which let’s face it if one of the two parties of government pick you it’s pretty likely to happen)!
It’s all highly political and highly party political and perhaps a chapter of my life I’d rather forget! I do have a way of holding people to account that is somewhat unusual, highly unpredictable and not always in keeping with the demands of social and political etiquette because I have to sleep at night. It must be my background and training then.
Legal Department: Partly, but that’s still a complete mystery to us because you’re one of those odd people subject to the Official Secrets Act 1989 c.6 we don’t have access to your unredacted personnel file.
John Brace: Ha ha, indeed. Everyone has their secrets eh and you’re right there are things I’d better keep my mouth shut over (for now) after all things can snowball but it’s about time the public knew what really went on in the past but that is a story for another day. At least I got an apology later from one of the Lib Dems, but I suppose the party that extols the virtues of “freedom of speech” until somebody happens to mention something about the Lib Dem Party would accuse me of “breaching confidentiality” if wrote about which one it was! Best not to take politics too personally eh?
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