Are Wirral councillors about to make another Town Hall bungle on education?

Are Wirral councillors about to make another Town Hall bungle on education?

Are Wirral councillors about to make another Town Hall bungle on education?

                                

Cabinet 17th December 2014 vote on Lyndale School closure L to R Cllr Tony Smith (Cabinet Member for Education), Cllr George Davies, Cllr Ann McLachlan
Cabinet 17th December 2014 vote on Lyndale School closure L to R Cllr Tony Smith (Cabinet Member for Education), Cllr George Davies, Cllr Ann McLachlan

Pictured above is Cllr Tony Smith (Cabinet Member for Children and Family Services) who has political accountability to the public for education at Wirral Council.

For those with long memories, who read my article The reasons why Wirral Council’s Lyndale School call in is being delayed or the Wirral Globe article headlined Town Hall bungle means Lyndale meeting called off you will recall when I pointed out to a certain Monitoring Officer called Surjit Tour who works for Wirral Council that the call in over the Lyndale School closure wasn’t lawful. He agreed with me and the public meeting had to be postponed.

Regulations that the last Labour government brought in The Education (Parent Governor Representatives) Regulations 1999 require the education committee of a local council, to have a minimum of two and a maximum of five parent governor representatives with voting rights.

Many councils appoint three, so that if one should cease to be a parent governor at that school, die, or indeed not turn up to meetings for six months without sending apologies and therefore be removed it doesn’t drop below two.

Wirral Council next week meets at Wallasey Town Hall on Tuesday 16th May 2017, see here to appoint its committees for the 2017-18 municipal year, although the agenda and reports are here.

As previously stated on this blog, the People Overview and Scrutiny Committee (which covers education) is proposed to be split into two new committees, the Adult Care and Health Overview and Scrutiny Committee and the Children and Families Overview & Scrutiny Committee.

The People Overview and Scrutiny Committee, currently has only has one parent governor representative on it.

Below is video of Cllr Steve Foulkes explaining why Wirral Council can’t carry on with only one parent governor representative (although at the time the Committee he was referring to had none).

So why are Wirral Council seemingly ignoring this legal requirement in 2017?

Will Councillor Steve Foulkes remember next week what he stated in 2014? Or do the Wirral public just have more political fudge to look forward to next week from a council whose leadership, management and governance of education was rated inadequate by OFSTED last year?

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Coordinating Committee (Wirral Council) 5th February 2014 Part 1 of 2

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Coordinating Committee (Wirral Council) 5th February 2014 Part 2 of 2

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The reasons why Wirral Council’s Lyndale School call in is being delayed

The reasons why Wirral Council’s Lyndale School call in is being delayed

The reasons why Wirral Council’s Lyndale School call in is being delayed

                                  

Labour's Cllr Tony Smith (Cabinet Member for Children and Family Services) explains at a Wirral Council Cabinet meeting why he thinks the Cabinet should agree to consultation on closure of Lyndale School
Labour’s Cllr Tony Smith (Cabinet Member for Children and Family Services) explaining at a Wirral Council Cabinet meeting why he thinks the Cabinet should agree to consultation on closure of Lyndale School (which is the decision that was called in)

I read the Wirral Globe article headlined “Town Hall bungle means Lyndale meeting called off” with interest as it was related to my earlier blog post headlined “Is the Lyndale School call in going to the wrong Wirral Council committee?”.

Basically Wirral Council is stuck (and apologies for the cliché) between a rock and a hard place. Their new constitution states call ins have to be decided by the Coordinating Committee, however a law (The Education (Parent Governor Representatives) Regulations 1999) means it has to be decided by a committee with parent governor representatives on and a previous case Transport and General Workers Union and Hilary Hollington v Wallsall Metropolitan Borough Council [2001] EWHC Admin 452 means that if they went ahead and made a decision on the Lyndale School call in by the Coordinating Committee without any parent governor representatives having a vote as part of that committee’s decision, then such a decision would almost certainly be quashed (based on that bit of case law) by a High Court Judge if any of the parents requested a judicial review.

The only committee that could legally decide the call in (that has parent governor representatives on it) is the Families and Wellbeing Committee (however for it to do so would currently be unconstitutional). There was a meeting scheduled of the Families and Wellbeing Committee for Thursday but it was mysteriously cancelled. If anybody knows what this cancelled meeting was about and if it was related to the call in please leave a comment.

So what happens next? Well the Coordinating Committee will meet on Wednesday 5th February as planned, but at the meeting will probably receive legal advice that they can’t make a decision on the call ins as they don’t have any parent governor representatives on their committee.

To progress with this matter will need a change to Wirral Council’s constitution. Such changes originate as a recommendation by the Standards and Constitutional Oversight Committee first (usually on the advice of Surjit Tour), which next meets on the 24th February. A recommendation would then be made to change the constitution to Budget Council on the 25th February and presuming the change is agreed to, the call in will be decided on the 27th February by the Families and Wellbeing Policy and Performance Committee.

The quote from Cllr Leah Fraser in the Wirral Globe article of “The parents and staff of Lyndale School deserve better than this chaos” is one I agree with. Both the quotes of Cllr Phil Davies and Joe Blott leave out an important point not mentioned, which is that the parent governor representatives will have a vote in the decision over the call ins. I’m not sure if the Diocesan representatives have a vote too (it’s something I’d have to look into), but as far as I recall one of the two Diocesan representative positions on the Families and Wellbeing Policy and Performance Committee is vacant (although an appointment to it could be made at the next Council meeting).

However taking from 16th January (date of the original Cabinet decision) to 27th February (date of the proposed Families and Wellbeing Policy and Performance Committee to consider the call in) is a total of one month and eleven days. Certainly it is not ideal for the parents and staff of Lyndale School to face uncertainty over the outcome for such a prolonged length of time.

What Wirral Council’s constitution currently states on call ins is included at the end of this blog post. Changes to it will need to be made if the Lyndale School call ins are to be made by the Families and Wellbeing Policy and Performance Committee on the 27th February.

The controversial rewrite of Wirral’s constitution (which included changing the call in procedure) happened at an extraordinary meeting of Wirral Council last April.

Here are some quotes from what councillors said at the time back in April 2013 about the constitutional changes which Labour councillors voted for, but Conservative and Lib Dem councillors were opposed to.

Cllr Phil Davies (Labour’s Leader) (who recommended the constitutional changes which included changes to the call in system) said, “What are the aims of the changes we’re proposing? Well we want to clearly improve our governance and decision-making procedures.”

Cllr Jeff Green (Leader of the Conservatives) said, “One of the elements of these changes is to remove the Children and Young People’s and the Adult Social & Health and Wellbeing Scrutiny Committees. Given Wirral’s history …. it seems to me a backward and dangerous step to actually remove any of the scrutiny.”

Former Councillor Darren Dodd (Labour) said, “This is what the people of Wirral have been asking for, for for a very long time.”

Cllr John Hale (Conservative) said, “These proposals should be consigned to the dustbin where they belong”.

Cllr Chris Blakeley (Conservative) said, “Where will it end, what next? Will Wirral be twinned with Pyongyang?”

Cllr Tom Harney (Liberal Democrats) said, “We don’t know where we came from, we don’t know where we’re going.”

Excerpt from Wirral Council’s constitution on call ins

35. Calling in of decisions

(1) All decisions of:
(i) the Executive Board,
(ii) an individual member of the Executive Board or
(iii) a committee of the Executive Board, and
(iv) key decisions taken by an officer;
shall be published, and shall be available at the main offices of the Council normally within 2 days of being made. All members of the Council will be sent a copy of the decision.

(2) That notice will bear the date on which it is published and will specify that the decision will come into force, and may then be implemented, unless the decision is called in for scrutiny by 9a.m. on the Thursday following publication of a decision on Friday. (Adjusted by a maximum of one day in there is one or more Bank Holidays in that period)

(3) (a) During that period, the Chief Executive shall Call-In a decision for scrutiny by the Co-ordinating Committee if so requested by any six members of the Council who have given detailed reasons for the Call-In of the decision. The detailed reasons must be provided by the Lead signatory, by the Call In deadline. When a Call In is requested the Chief Executive shall liaise with the Member listed first on the Call-In schedule, to ensure there is sufficient information provided to enable the Call-In to proceed. As long as there is a clear reason given, the call-in should be allowed. He/she shall then notify the decision-taker of the Call-In. He/she shall call a meeting of the Committee on such date as he/she may determine, where possible after consultation with the Chair of the Coordinating Committee, and in any case within 7 working days of the decision to call-in.

(b) The relevant Chief Officer and all members will be notified of a call-in immediately and no action will be taken to implement the decision until the call-in procedure has been completed. A decision of the Cabinet, a committee of the Cabinet or individual Cabinet member may be called in only once.

(4) Having considered the decision, the Co-ordinating Committee may:-
(i) refer it back to the decision making person or body for reconsideration, setting out in writing the nature of its concerns or;
(ii) refer the matter to full Council. Such a referral should only be made where the Co-ordinating Committee believes that the decision is outside the policy framework or contrary to or not wholly in accordance with the budget. The procedures set out in those rules must be followed prior to any such referral.

(5) If a decision is referred back to the decision making person or body it shall be reconsidered in the light of the written concerns of the Co-ordinating Committee before a final decision is made.

(6) If following a call in, the Co-ordinating Committee does not refer the matter back to the decision making person or body and does not refer the matter to Council, the decision shall take effect on the date of the Co-ordinating Committee meeting. If the Co-ordinating Committee does not meet the decision shall take effect from the date when the Committee should have met.

(7) If the matter is referred to full Council and the Council does not object to a decision which has been made, then the decision will become effective on the date of the Council meeting.

(8) If the Council does object the Council may take a decision, which is outside the policy and budgetary framework. Otherwise the Council will refer any decision to which it objects back to the decision-making person or body, together with the Council’s views on the decision. That decision making body or person shall choose whether to amend the decision or not before reaching a final decision and implementing it. Where the decision was taken by the Executive Board as a whole or a committee of it, a meeting will be convened to reconsider within ten working days of the Council request. Where the decision was made by an individual, the individual will reconsider within ten working days of the Council request.

(9) Call-in should only be used in exceptional circumstances where members have evidence which suggests that the decision was not made in accordance with the principles of decision making in the constitution.

(10) Call-in and urgency
(a) The call-in procedure set out above shall not apply where the decision being taken by the Cabinet is urgent. A decision will be urgent if any delay is likely to be caused by the call-in process would seriously prejudice the Council’s or the public’s interest. The record of the decision and the notice by which it is made public shall state whether, in the opinion of the decision making person or body, the decision is an urgent one, and therefore not subject to call-in. The Chief Executive must agree both that the decision proposed is reasonably in all the circumstances and to it being treated as a matter of urgency. Decisions taken as a matter of urgency must be reported to the next available meeting of the Council, together with the reasons for urgency.

(b) The operation of the provisions relating to call-in and urgency shall be monitored annually, and a report submitted to Council with proposals for review if necessary.

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Is the Lyndale School call in going to the wrong Wirral Council committee?

Is the Lyndale School call in going to the wrong Wirral Council committee?

Is the Lyndale School call in going to the wrong Wirral Council committee?

                        

Labour's Cllr Tony Smith (Cabinet Member for Children and Family Services) explains at a Wirral Council Cabinet meeting why he thinks the Cabinet should agree to consultation on closure of Lyndale School
Labour’s Cllr Tony Smith (Cabinet Member for Children and Family Services) explaining at a Wirral Council Cabinet meeting why he thinks the Cabinet should agree to consultation on closure of Lyndale School

The start of this story goes all the way back to my teenage years when a Labour government was elected in 1997 having used the slogan “education, education, education” during their election campaign. A few years after being elected, Labour’s Estelle Morris, a Minister in the Department for Education and Employment brought in legislation called The Education (Parent Governor Representatives) Regulations 1999. As explained in the explanatory notes, “These Regulations make provision for representatives of parent governors at maintained schools to be included in the education committees of local education authorities” and “Regulation 10 sets out the voting rights of a parent governor representative. Such a person may vote, broadly, on any matter related to the local education authority’s schools and pupils, save that he may not vote on the determination of the authority’s budget.”

Two years after these regulations became law, there was a judicial review case involving them Transport and General Workers Union and Hilary Hollington v Wallsall Metropolitan Borough Council [2001] EWHC Admin 452. Wallsall Metropolitan Borough Council’s Education and Community Services Committee had voted eleven to nine to outsource the school meals service to P Martin & Sons (Trefonen) Limited which had previously been provided by the Council’s Direct Services Labour Organisation. The parent governor representatives (numbering three) had been told at the meeting that they couldn’t vote on the catering contract decision, but had wanted to vote against contracting the service out. If the parent governor representatives had been allowed to vote the result would’ve been different.

The result of this case was that the High Court Judge in the case quashed the decision of the committee and granted a declaration that the contract between Wallsall Metropolitan Borough Council and P Martin & Sons (Trefonen) Limited was void. Wallsall Metropolitan Borough Council (as the losing party) had to pay the other sides’ legal costs of £15,649.83 and permission to appeal was denied.

Wirral Council is a local education authority and its Wellbeing Policy and Performance Committee has the legal minimum of two parent governor representatives (with voting rights on education matters). The Church of England diocese representative is currently vacant but it also has one Roman Catholic representative with voting rights.

When the decision to consult on closing Lyndale School was called in (there are previous blog posts on the original Cabinet decision and some reasons why it should be called in) under the new constitution agreed by Wirral Council last year, the call in (at least at the point of writing) is down to be reviewed at a meeting of the Coordinating Committee on the 5th February.

The Coordinating Committee (comprising 15 councillors) has a split of 9 Labour councillors, 5 Conservative councillors and 1 Lib Dem. The Labour Chair also has a casting vote in the event of a tied vote.

The Families and Wellbeing Committee (comprising 15 councillors plus co-optees) has a split of 9 Labour councillors, 5 Conservative councillors and 1 Lib Dem. There are also two parent governor representatives (Mrs Nicola Smith and Mrs H Shoebridge both of them have voting rights) and a Roman Catholic Diocesan representative Mr Damian Cunningham (who also has voting rights). The Chair (who has a casting vote in the event of a tied vote) is a Conservative.

If the call in goes to the Coordinating Committee, the nine Labour councillors can just vote to uphold the Labour Cabinet’s decision as nine is a majority on a fifteen person committee.

However if the call in goes to be decided at the Families and Wellbeing Committee, then Labour councillors only have half the votes (nine out of eighteen) on that committee. If the call in went to this committee and Labour councillors voted to uphold the Cabinet’s decision that would be only nine votes. If the Conservative councillors, plus the Lib Dem councillor, plus the parent governor representative and Roman Catholic Diocesan representative voted to send the decision back to Cabinet to be changed, then there would be a deadlock of nine votes either way. In this case the Conservative Chair would have a casting vote, which is usually used in the same way that that councillor originally voted.

Regulation 3 of the Education (Parent Governor Representatives) Regulations 1999 states “A local education authority shall appoint at least two but not more than five parent governor representatives to each relevant committee of the authority” and “relevant committee” is defined as here as “a committee appointed by a local authority, or by two or more local authorities, in accordance with section 102 of the Local Government Act 1972 wholly or partly for the purpose of discharging any functions which are conferred on the local authority or authorities in its or their capacity as a local education authority or authorities, but it does not include any committee the decisions of which are subject to scrutiny by another committee which is itself a relevant committee.”

So, is the Coordinating Committee making a decision whether or not to uphold the Cabinet decision to consult on closing Lyndale School a function conferred on Wirral Council in its capacity as a local education authority? Yes it is.

Does the Coordinating Committee have parent governor representatives on it? No.

Regulation 10 of the Education (Parent Governor Representatives) Regulations 1999 seems to be quite clear:

Voting rights of parent governor representatives

10. (1) Subject to paragraph (2), a parent governor representative shall be entitled to vote on any of the following matters—

(a) matters which relate to schools maintained by the local education authority;
(b) matters which relate to pupils who are educated in schools maintained by the local education authority, or who are educated by the local education authority otherwise than at school.

(2) A parent governor representative shall not be entitled to vote on the determination of the local education authority’s total revenue expenditure on education or the determination of its total capital expenditure on education.

So I handed the following letter to the Chair of the Coordinating Committee Cllr Stuart Whittingham on the evening of 29th January, who has passed it to Surjit Tour. I had a brief discussion with Cllr Stuart Whittingham after the end of the Transformation and Resources Policy and Performance Committee. Despite reading my letter, he felt confident that the call-in would be decided by the Coordinating Committee on the 5th February.

Strangely a new meeting of the Families and Wellbeing Policy and Performance Committee appears in the calendar for the 6th February, however as no agenda has been published I cannot say whether this is related to the call in.

Jenmaleo,
134 Boundary Road,
Bidston,
Wirral,
CH43 7PH

29th January 2014

RE: Lyndale School call in

Dear Cllr Whittingham,
I notice that a meeting of the Coordinating Committee is scheduled on the 5th February to consider the Lyndale School call in.

The Education (Parent Governor Representatives) Regulations 1999 require each “relevant committee” of Wirral Council to have between 2-5 parent governor representatives with voting rights.

“Relevant committee” is defined as a committee that discharges any functions conferred on the authority through it being a local education authority. The Coordinating Committee has no such parent governor representative on it, therefore why is this call in not being decided by the Families and Wellbeing Policy and Performance Committee?

I would appreciate an answer to this point as soon as possible. My email address is john.brace@gmail.com .

Yours sincerely,

John Brace

So far at the time of writing this (on the afternoon of the 30th January) I have not yet received a reply.

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