VIDEO: A round-up of local Wirral and Merseyside politics by John Brace (part 1)

VIDEO: A round-up of local Wirral and Merseyside politics by John Brace (part 1)

VIDEO: A round-up of local Wirral and Merseyside politics by John Brace (part 1)

                                                            

Screenshot from Youtube video of John Brace
Screenshot from Youtube video of John Brace

Below is a transcript of a video I’ve recorded about a range of local political matters. I’ve added some extra detail which I don’t say on the video in [] brackets and of course links to more detailed stories. I realised when I finished recording that I’d been talking for nearly eighteen minutes. It’s about a variety of local political issues.

At the time of publishing this blog post the video has been uploaded to Youtube, but is still processing at Youtube’s end.

Please accept YouTube cookies to play this video. By accepting you will be accessing content from YouTube, a service provided by an external third party.

YouTube privacy policy

If you accept this notice, your choice will be saved and the page will refresh.

John Brace on local Wirral and Merseyside politics (part 1)


JOHN BRACE: Hello, I hope you can hear me clearly. I’m John Brace and I’m going to be filming a series of videos as due to the half term holidays next week, there’s a shortage of public meetings.

So, I thought I’d start off by looking at one of the bigger stories on my blog this week.

That was about what I said at a meeting of the Merseyside Fire and Rescue Authority to the Chair Cllr Dave Hanratty and his response about councillors’ expenses.

I suppose I’d better briefly explain what the situation is regarding councillors’ expenses and allowances.

Councillors on the Merseyside Fire and Rescue Authority are entitled to claim expenses for instance for travel to public meetings and each year they’re supposed to publish a table detailing each councillors’ name and how much has been spent over the year in expenses for that particular councillor in various categories.

In fact that’s a legal requirement, a very basic level of transparency.

However unfortunately what Merseyside Fire and Rescue Service was doing was, where they received invoices directly rather than councillors claiming back expenses they’d incurred themselves, where trips were booked through Capita, train travel that kind of thing, Merseyside Fire and Rescue Service were invoiced directly but this wasn’t appearing on the actual annual lists so that about £6,000 or so of expenses were being left off. So I have been pointing this out over the past few months.

There’s also the issue that councillors get paid allowances and on this National Insurance and presumably things like income tax were paid. Now those amounts weren’t included in the annually published lists either.

I did ask Councillor Hanratty earlier, I think it was the day before yesterday whether these amounts would be included in future, didn’t get an answer.

Asked a question about this at the Birkenhead Constituency Committee, told it was a matter for Merseyside Fire and Rescue Service/Merseyside Fire and Rescue Authority.

I think they don’t want to give me answers on this, I think they hope I’ll just stop writing about it and move on to other things. After all I think there are far less councillors getting a taxi from home to the public meetings now since I started publishing what these expenses were for.

Anyway, another news story that’s seems to be popular on the blog is that Merseytravel’s Chief Executive David Brown is leaving. I think he’s leaving from some time next month to become Chief Executive of Transport for the North. Obviously that’ll be news for people that work at Merseytravel and I suppose you’re wondering what Transport for the North is!

Well it’s a new kind of regional body that’s been set up regarding transport matters and eventually it’ll become like Merseytravel is and the Combined Authority a statutory body. So I wish him luck in his new job and I think the Deputy Chief Executive Frank Rogers will be Acting Chief Executive until councillors decide on who the permanent Chief Executive should be, which should come to a future meeting in the future.

Anyway, another thing I’ve written about on the blog recently is to do with the whole Lyndale School closure matter. Now for those who have been following this story this is probably going to repeat what you already know, but Wirral Council officers said the reason the school had to close was that from 2016/17 which is the next academic year, that funding that they’d get for education from the government would be based on pupil numbers rather than place numbers.

Now at the moment I think there are about forty places at Lyndale School and about must be a dozen or so pupils. So basically they were saying that from next year, there would be a shortfall in Lyndale School’s budget.

But this hasn’t happened!

The Cabinet still decided to close the School, but the funding changes haven’t happened, Wirral Council will get the same funding as they did the previous year.

However despite them getting the same funding, they have actually made cuts from the SEN budget because there is flexibility at Wirral Council in that they can move money around within the education budget. They’ve still got to spend it on education, but they can move money around from say that allocated for teaching assistants for special educational needs to something else within that education budget and one of the things that’s been causing pressures on the budget is that they have a massive contract, I think it’s about half way through thirty years or something.

I’ve read through the contract and it’d take too long to go into here, but it’s a contract with Wirral Schools Services Limited for basically to rebuild a number of schools, but as well as the payments that relate to that there are also payments of millions a year I think that the schools have to pay this private company for services to do with the schools. For instance I think school meals is part of it, possibly cleaning and maintenance.

So the situation had been that Wirral Council was getting a grant from the government for some of this, but the contract meant that the costs were rising each year for PFI.

What was happening was, this money was being funded outside the education budget by Wirral Council. But then a political decision was made [by Wirral Council councillors] not to do this, which meant that a few million had to be cut out of the education budget elsewhere.

Hence why special educational needs got a cut, but again one of the other interesting twists and turns that came out in the Lyndale School saga is that the whole issue of whether the School should be closed or not seemed to arise around the time there was a revaluation of the land and buildings.

Off the top of my head I think the valuation was about £2.4 million [it was actually £2.6 million]. I’d better make it clear at this stage this is a what they call a technical, what’s it called, depreciated replacement cost value. It’s not a they send in an estate agent and they say how much would would we get for this and how much would we get for the school playing fields and so on?

No, it’s more they have to have on their asset list, a list of how much their assets are because obviously as a Council they have liabilities, they have to offset that with their assets.

But it’s a great shame what happened regarding Lyndale School, it’s not closed yet, it’ll close at the end of the academic year, but I think it could’ve been handled a lot better.

Obviously there’ve been recent revelations come out that the person that chaired the consultation meetings on the Lyndale School closure wasn’t in fact a Wirral Council employee, but is a what do you call it, a temp, a temporary worker because they couldn’t recruit somebody to the post [for £775+VAT/day].

He’s called Phil Ward and the problem was that, there was quite a bit of criticism levelled at him for the way he chaired the consultation meetings. Now obviously you can criticise anybody for chairing high profile consultation meetings. I’m sure there were criticisms of how Merseyside Fire and Rescue Authority did their consultation meetings.

But moving back to Merseyside Fire and Rescue Authority, the Saughall Massie issue, it was agreed by councillors on the Fire Authority to go ahead, they’ve agreed the four or so million pounds in the capital budget and a planning application has been submitted.

Now I’ve checked on Wirral Council’s website and I can’t see a planning application there yet but obviously they have to scan it in and put it on the website for consultation so people can make their comments and so on.

The other issue is there was a vote recently on whether Wirral Council should give the land or they may get something for it I don’t know, maybe they’ll give it to them, should give this land to Merseyside Fire and Rescue Authority for this new fire station in Saughall Massie.

Now, that was a five for, five against vote with one abstention so it got deferred to another meeting.

Now obviously it would be better if Wirral Council could make a decision reasonably quickly but I understand the point that councillors made at the meeting, that they felt they were only hearing one side of the argument and that they hadn’t got the information in front of them regarding the emails that had been released under Freedom of Information Act requests, they hadn’t heard the Fire and Rescue Service’s point of view because nobody had been invited along from the Merseyside Fire and Rescue Service and basically better decisions are made by politicians when they have the facts in front of them and they don’t like making decisions if they’re going to be made fools of later when it turns out there’s something they should’ve known or was in the public domain.

An example of that New Brighton car parking Fort Perch Rock fiasco. Now that went out to budget consultation, was agreed by Cabinet, was agreed by Council but what wasn’t known at the time was that Wirral Council had a lease for the Marine Point complex and that lease said that if Wirral Council introduced car parking charges at Fort Perch Rock, that they could be introduced in the car parking elsewhere there and Liverpool Echo journalist I think it was Liam Murphy got in touch with the company that runs the Marine Point complex and they said yes they’d have to introduce charges because obviously if Wirral Council had introduced charges at Fort Perch Rock car park then it would’ve displaced some parking to the free parking elsewhere, so then they’d feel they’d have to introduce charges themselves, but once these matters came out then there was a U-turn done on it and they decided they’ll make up the budget shortfall somewhere else.

But that goes back to my point about politicians having the information in front of them so they can make reasonably informed decisions. Now the reports that go before officers, sorry politicians whether that’s at Wirral Council, Liverpool City Council, Merseyside Fire and Rescue Service, Merseytravel and so on are written by officers. That is employees of the particular public body that the politicians are politicians for.

But there’s a question of, officers can have a particular point of view and make a recommendation and therefore ask the councillors to approve it, but officers aren’t actually going to know everything, but where do the public fit in all this?

Because of course in an ideal world, like for instance the Planning Committee yesterday where the public gets to speak for five minutes if they’ve got a qualifying petition. In an ideal world, if you were making a decision, say a major decision about a fire station being built, well that’s two decisions really, it’s a planning decision and whether Wirral Council give them the land. When you’re making a major decision like that, then not only should you have some sort of consultation with the public and by consultation I don’t mean publishing the papers for the meeting a week before, although that does give some advance warning so people can lobby the decision makers.

I’m talking about that people who are affected by the decision should have their say at a public meeting and I know there’ve been consultation meetings, that the Merseyside Fire and Rescue Service have run and that’s fine. But what I’m saying is the ball’s now in Wirral Council’s court, there has to be the usual consultation on planning applications, but it’s a very emotive issue.

And I think basically if I can sum up the positions, Merseyside Fire and Rescue Service have received a grant for some of the cost of this fire station and of course with the West Kirby and Upton fire stations being closed, they’ll receive something for the sale of those but basically they want to build it now in Saughall Massie because the site in Greasby has been withdrawn.

But the problem is that this is greenbelt land and there’s a lot of resistance from the residents regarding a fire station there.

Now in the not too distant past Merseyside Fire and Rescue Service did put in a planning application for a temporary fire station in Oxton while Birkenhead Fire Station was being rebuilt. I know that was later withdrawn but that caused a similar level of fuss and outrage and politicians saying they were against it and so on.

But the problem was that was only a temporary ~12 month arrangement, eventually they found some way round finding somewhere else. But the same issues that were brought up then, have been brought up regarding this Saughall Massie issue, you know the issues regarding sirens, traffic and so on but I think the elephant in the room really for Merseyside Fire and Rescue Service is that a number of the fire stations they’ve got are part of the PFI scheme, so they can’t close those without massive penalties.

I mean I think Birkenhead Fire Station is one example of one of the fire stations they’ve got under this PFI scheme.

So there are fire stations they can’t shut, so that leaves if they want to make any budget savings, for instance through cutting jobs and merging fire stations, they’ve only got the ones that aren’t the PFI fire stations that they can choose from.

And that’s part of the reason why Upton and West Kirby got chosen.

But I think one of the things that has currently got the public going, is that after there was pressure put regarding the Greasby site, that the offer of Greasby where there’s a library and community centre there was withdrawn and people are asking why Wirral Council isn’t doing the same thing with Saughall Massie?

Well basically these are decisions yet to be determined, it’s a party political matter because three political parties involved in the last decision on this voted three different ways, but I can see a problem because firstly Merseyside Fire and Rescue Service can’t keep Upton and West Kirby open. They just don’t have the budget for the amount of firefighters that would take.

Now one alternative is, just keep Upton open, now the downside to this according to the Chief Fire Officer is that this would increase response times to the Hoylake and West Kirby area, so that’s why they want somewhere roughly in between the two stations.

However then people raised the issue of Upton’s close to Arrowe Park Hospital, so it’ll take longer to get to there so wherever you have a fire station there’ll be people that have a quick response time and people that have a slow response time.

But the fire engines aren’t always at the fire station all the time, I mean about half the time they’ll be called out on a job, well maybe a bit more than that, they’ll be out somewhere else and that can’t really be predicted where they’d be at, whether they’d be fitting a smoke alarm or something like that.

So there are a lot of issues to do with the Saughall Massie fire station and basically I’ll be reporting on it, but at the same time I think it’s interesting seeing both the Merseyside Fire and Rescue Authority meetings and the Wirral Council meetings and how this issue has been dealt with at both of them.

Of course if the government hadn’t offered Merseyside Fire and Rescue Service a large grant to build a new fire station there, then I doubt this would’ve gone ahead, admittedly they could’ve borrowed the money or found the money from somewhere but I think that what’s interesting is I did make a FOI for the grant application that they made to DCLG, was told that this information would be published in the future so I couldn’t have it now and I’d have to wait till after the consultations were finished and by that they didn’t just mean the Upton and West Kirby consultations but they meant the other consultations because this grant is not just for a fire station at Saughall Massie, there are similar consultations and mergers and closures happening elsewhere across Merseyside.

So hopefully that will sum up things and I’ll point out that tonight at the Wallasey Constituency Committee, I won’t be there but I noticed because I read through the reports and the agenda, that the Motability, they have a little place in Birkenhead that hires out wheelchairs and things like that are looking to set up a place in New Brighton, so people can hire wheelchairs and that kind of thing.

So that’s a possibly positive move for New Brighton, because I know there’s been a lot of criticism at New Brighton and a large petition over the dropped car parking plans.

Anyway I’d better finish for now, but thanks for listening.

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks:

18 more pages of the Wirral Council Schools PFI contract including the Bebington High headlease

18 more pages of the Wirral Council Schools PFI contract including the Bebington High headlease

18 more pages of the Wirral Council Schools PFI contract including the Bebington High headlease

                                                  

Wirral Council has a Schools PFI contract with Wirral Schools Services Limited. The contract is very long, too long to fit in one blog post.

The first 17 pages of the contract have been previously published here, followed by the next 6 pages and the next 38 pages of the mammoth contract here.

What I scanned in today was part of one of the schedules about land. Included below is the Bebington headlease along with the index page for the schedules.

Wirral Borough Council Wirral Schools Services Limited PFI contract cover page
Wirral Borough Council Wirral Schools Services Limited PFI contract cover page

CONFORMED COPY

(1) WIRRAL BOROUGH COUNCIL

(2) WIRRAL SCHOOLS SERVICES LIMITED


SCHEDULES VOLUME 1

(SCHEDULES 1-3)


Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 1 (Land) to Schedule 3 (Works) page 1 of 4
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 1 (Land) to Schedule 3 (Works) page 1 of 4

CONFORMED COPY

INDEX OF SCHEDULES

SCHEDULE     HEADING
SCHEDULE 1 LAND
Part 1 Bebington Headlease
Part 2 Hilbre Headlease
Part 3 Park High Headlease
Part 4 Prenton High Headlease
Part 5 South Wirral High Headlease
Part 6 Wallasey Headlease
Part 7 Not used
Part 8 Weatherhead Headlease
Part 9 Wirral Girls Headlease
Part 10 Bebington Underlease
Part 11 Hilbre Underlease
Part 12 Park High Underlease
Part 13 Prenton High Underlease
Part 14 South Wirral High Underlease
Part 15 Wallasey Underlease
Part 16 Not used
Part 17 Weatherhead Underlease
Part 18 Wirral Girls Underlease
Part 19 Plans
SCHEDULE 2 FINANCIAL MATTERS
Part 1 Lender’s Direct Agreement
Part 2 The Council’s Design and Building Contract Direct Agreement
Part 3 The Council’s Support Services Management Direct Agreement
Part 4 Design and Building Contract Performance Guarantee
Part 5 Support Services Management Agreement Performance Guarantee
Part 6 Initial Senior Funding Agreements
Part 7 Other Initial Funding Agreements
Part 8 Rules for Refinancing
SCHEDULE 3 WORKS
Part 1 Design Development Procedure
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 3 (Works) to Schedule 9 (Insurance) page 2 of 4
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 3 (Works) to Schedule 9 (Insurance) page 2 of 4
Part 2 Prohibited Materials
Part 3 Schedule of Key Dates
Part 4 Outline Design Documents
Part 5 The Completion Standards
Part 6 Decant Programme Methodology
Appendix 1 Decant Programme: Park High
Appendix 2 Decant: Further Obligations
Part 7 Handback Requirements
Part 8 Project Programme
Part 9 Construction Site Rules
Part 10 Handback Survey
SCHEDULE 4 PAYMENTS
Part 1 Definitions
Part 2 Services Contract Payment
Part 3 Performance Deduction Look-Up Table
Part 4 Table of Service Units per School
Part 5 Monitoring
Part 6 Utility Services
Part 7 Third Party Use
Part 7A Catering
Part 8 Value for Money Testing
Appendix 1 Form of Performance and Payment Report
SCHEDULE 5 ACCOMMODATION SERVICES OUTPUT SPECIFICATIONS
SCHEDULE 6 SUPPORT SERVICES OUTPUT SPECIFICATIONS
Part 1 Building and Asset Maintenance Output Specification
Part 2 Support Service Requirements and Performance Tables
Part 3 Service Level Agreements
Part 4 Service Level Agreements Alteration Procedure
SCHEDULE 7 REPORTS AND RECORDS
Part 1 Reports
Part 2 Records
SCHEDULE 8 VARIATIONS
Variation Notice
SCHEDULE 9 INSURANCE
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 9 (Insurance) to Schedule 19 (Admission Agreements and Bonds)  page 3 of 4
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 9 (Insurance) to Schedule 19 (Admission Agreements and Bonds) page 3 of 4
Part 1 The Part 1 Insurance Period
Part 2 The Part 2 Insurance Period
Appendix 1 Endorsements
Appendix 2 Broker’s Letter of Undertaking
Appendix 3 Business Interruption Insurance – the Authority’s Obligations as Insurer
Appendix 4 Schedule of Insured Parties
SCHEDULE 10 LIAISON COMMITTEE
SCHEDULE 11 COMPENSATION ON TERMINATION
Part 1 Definitions
Part 2 Project Co Default
Part 3 Authority Default
Part 4 Notice by the Authority
Part 5 Force Majeure, Uninsurability and Planning Challenge
Part 6 Corrupt Gifts
SCHEDULE 12 DISPUTE RESOLUTION
SCHEDULE 13 SENIOR REPRESENTATIVES
SCHEDULE 14 COMPENSATION EVENTS
SCHEDULE 15 METHODOLOGY FOR ASBESTOS
Appendix 1 MB Wirral Policy
Appendix 2 Asbestos Survey Risk Assessment
SCHEDULE 16 LIQUIDATED DAMAGES
SCHEDULE 17 QUALITY SYSTEMS
Part 1 Design and Build Period Quality System
Part 2 Operational Period Quality System
Appendix A Quality Policy
Appendix B Certificate of Approval
Appendix C Proposed QA Implementation Plan
Appendix D Contact Directory
Appendix E Local Procedures
SCHEDULE 18 EMPLOYEES
Part 1 Employee Information
Part 2 Terms and Conditions of Employment
SCHEDULE 19 ADMISSION AGREEMENTS AND BONDS
Part 1 Jarvis Workspace FM Limited
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 19 (Admission Agreements and Bonds) to Schedule 24 (New Moveable Equipment Schedule of Rates)  page 4 of 4
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 19 (Admission Agreements and Bonds) to Schedule 24 (New Moveable Equipment Schedule of Rates) page 4 of 4
Part 2 Compass Group PLC
Part 3 MTL Commercial Limited
SCHEDULE 20 STAFF SECURITY PROTOCOL
SCHEDULE 21 OPERATIONAL SITE RULES
SCHEDULE 22 DRAFT TRANSITIONAL SERVICES AGREEMENT
SCHEDULE 23 CITY LEARNING CENTRE
SCHEDULE 24 NEW MOVEABLE EQUIPMENT SCHEDULE OF RATES
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 1 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 1 of 13

SCHEDULE 1

LAND

Part 1

Bebington Headlease

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 2 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 2 of 13

DATED                2001


(1) WIRRAL BOROUGH COUNCIL

(2) WIRRAL SCHOOLS SERVICES LIMITED


HEADLEASE

-of-

Bebington High School, Bebington Road

Bebington, Merseyside


THIS LEASE IS A NEW TENANCY FOR THE

PURPOSES OF THE LANDLORD AND TENANT

(COVENANTS) ACT 1995

ROWE & MAW

20 Black Friars Lane

London EC4V 6HD

Tel: 020 7248 4282

Fax: 020 7248 2009

Ref: 709/476/27909.00001

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 3 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 3 of 13

CONTENTS

Clause Subject Matter Page
     
1. Definitions and Interpretation 4
2. Demise and Rents 6
3. Tenant’s Covenants 6
4. Landlord’s Covenants 8
5. Agreements and Declarations 8
6. New Tenancy 9
Schedule 1 (The Premises)
Schedule 2 (Easements and Rights granted)
Schedule 3 (Rights excepted and reserved)
Schedule 4 (The documents (if any) containing incumbrances to which the Premises are subject)
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 4 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 4 of 13

THIS LEASE made the        day of        2001

BETWEEN:

WIRRAL BOROUGH COUNCIL of Town Hall, Brighton Street, Wallasey, Wirral, Merseyside, CH44 8ED (the “Landlord”); and

WIRRAL SCHOOLS SERVICES LIMITED having its registered office at Frogmore Park, Watton-at-Stone, Hertfordshire SG14 3RU (registration number 4115637) (the “Tenant”).

WITNESSES as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this lease the following expressions have the respective specified meanings (subject to any particular interpretation required by clause 1.2):

“Adjoining Premises” means any land or buildings neighbouring or adjoining or adjacent to the Premises;

“Buildings” means the buildings now or hereafter during the Term at the Premises and “Building” means any one of them;

“Permitted Use” means use of the Premises to comply with the obligations and exercise the rights of the Tenant under the Project Agreement;

“Perpetuity Period” means the period of eighty years from the date hereof which is the perpetuity period applicable to this lease;

“Plan” means the plan attached hereto;

“Premises” means the Premises described in Schedule 1;

“Project Agreement” means the agreement entitled Project Agreement made between (1) the Landlord and (2) the Tenant dated                              and as varied from time to time under Clause 32 thereof or supplemented or any other agreement superseding that agreement or substituted for that agreement and in either case expressed to be made subsequent to it;

“Rent” means a peppercorn, if demanded, per annum;

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 5 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 5 of 13

“Service Media” means all sewers drains pipes gullies gutters ducts mains channels wires cables conduits flues and any other conducting media;

“Services” means soil water electricity gas compressed air telecommunications signals and other liquids gasses or signals capable of passing along or through Service Media; and

“Term” means a term of 30 years from and including the date hereof subject to the provisions for the prior determination of the Term hereinafter contained;

1.2 Interpretation

(1) Words importing the singular include the plural and vice versa and words importing one gender shall include both genders.

(2) Where a party comprises more than one person covenants and obligations of that party take effect as joint and several covenants and obligations.

(3) A covenant by the Tenant not to do (or omit) any act or thing also operates as a covenant not knowingly to permit or suffer it to be done (or omitted) and to prevent (or as the case may be to require) it being done.

(4) References in this lease to:

(a) any clause sub-clause schedule or paragraph is a reference to the relevant clause sub-clause schedule or paragraph of this lease and clause and schedule headings shall not affect the construction of this lease;

(b) the Premises shall be construed as extending to any part of the Premises and shall include all and each and every part of any:

(i) Buildings from time to time thereon;

(ii) Service Media within the Premises and exclusively serving the Premises;

(iii) additions alterations and improvements thereto; and

(iv) Landlord’s fixtures and fittings therein;

(c) any statute (whether generally or specifically) shall include all derivative instruments orders regulations and in each case any re-enactment or modification thereof from time to time.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 6 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 6 of 13

2. DEMISE AND RENTS

Subject to compliance by the Tenant with its obligations under the Project Agreement the Landlord DEMISES unto the Tenant ALL THAT the Premises TOGETHER WITH the easements and rights (in common with the Landlord and all others with its authority or otherwise from time to time entitled thereto) specified in Schedule 2 which shall enure for the benefit of the Tenant and all those expressly authorised by the Tenant EXCEPT AND RESERVING to the Landlord and all other persons from time to time entitled to the rights mentioned in Schedule 3 TO HOLD the Premises unto the Tenant for the Term SUBJECT to:

(a) the provisions contained or referred to and rights granted to any party in the documents specified in schedule 4 insofar as they relate to the Premises;

YIELDING AND PAYING therefor during the Term to the Landlord the Rent payable annually in advance the first payments being made on the date hereof.

3. TENANT’S COVENANTS

The Tenant COVENANTS with the Landlord:

3.1 Pay rent

To pay the Rent without deduction set-off or counterclaim at the times and in the manner aforesaid.

3.2 Use

Not to use the Premises for anything other than the Permitted Use.

3.3 Easements

(1) Not to obstruct any window or light or abandon any easements from time to time enjoyed by the Premises.

(2) To give immediate written notice to the Landlord of any encroachment on or circumstances which might result in the acquisition of any easement or other right over the Premises and at the Tenant’s expense to take or join in such proceedings or take such other steps as the Landlord may require to prevent any such acquisition.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 7 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 7 of 13

3.4 Incumbrances

To comply with all covenants and other matters relating to the Premises (and in particular those contained or referred to in the documents specified in schedule 4) so far as they are enforceable and still subsisting.

3.5 Alienation

(a) The Tenant shall not assign, underlet, charge, hold on trust for another, part with or share possession or occupation of the whole or any part or parts of the Premises except as may be permitted or required by this lease. For the avoidance of doubt, nothing in this Clause 3.5(a) shall prevent the Tenant from charging the whole of the Premises in favour of any person providing funding under the Funding Agreement (as defined in the Project Agreement) from time to time.

(b) Notwithstanding the terms of Clause 3.5(a) the Tenant must assign the whole of the lease to a permitted assignee of the Tenant’s interest under the Project Agreement, such assignment of this lease to take place simultaneously with the assignment of the Project Agreement.

(c) The Tenant shall not underlet any part or the whole of the Premises without the consent of the Landlord save that the Tenant shall be permitted to grant an underlease of the whole of the Premises to the Landlord on the date hereof in the form of the underlease annexed to the Project Agreement.

3.6 Overriding lease

If at any time during the Term the Landlord shall grant a tenancy of the reversion immediately expectant on the determination of this lease whether persuant to section 19 Landlord and Tenant (Covenants) Act 1995 or otherwise any covenant on the part of the Tenant to obtain the consent of the Landlord under this lease to any dealing shall be deemed to include a further covenant also to obtain the consent of the lessor under such tenancy to such dealing.

3.7 Permit Entry

To permit the Landlord and any others authorised by the Landlord to enter the Premises on reasonable notice at reasonable times (except in emergency) to ascertain that the covenants on the part of the Tenant in this lease are being observed and performed and to enable the Landlord to exercise his rights or fulfil its obligations

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 8 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 8 of 13

under the Project Agreement subject to complying with the obligations of the Landlord under the Project Agreement.

3.8 Project Agreement

The parties to this lease agree that where the provisions of this lease and the Project Agreement conflict, the terms of the Project Agreement shall prevail.

4. LANDLORD’s COVENANT

The Landlord covenants with the Tenant that the Tenant paying the rents and complying with its obligations under this lease and the Project Agreement may peaceably hold and enjoy the Premises during the Term without any interruption by the Landlord or any person lawfully claiming through under or in trust for it.

  1. AGREEMENTS AND DECLARATIONS

PROVIDED ALWAYS AND IT IS AGREED AND DECLARED

5.1 Exclusions

(1) The Tenant shall not have the benefit of any easement right or privilege other than those expressly hereby granted.

(2) Any rights granted or reserved by this lease in respect of anything which does exist at the date hereof shall be effective only if it comes into existence before the expiry of the Perpetuity Period.

(3) The Landlord gives no express or implied warranty that the Permitted Use will be or remain a lawful or authorised use under the Planning Acts or otherwise.

(4) So far as the law shall allow the right of the Tenant (or any undertenant) to compensation on quitting the Premises is excluded.

5.2 Notices

Clause 54.10 of the Project Agreement shall apply in respect of any notices or other communications served or required to be served hereunder.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 9 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 9 of 13

5.3 Termination

If the Project Agreement is terminated for any reason or expires the Term shall automatically determine without notice but without prejudice to any claim by one party in respect of any antecedent breach of any obligation of the other under this lease.

5.4 Exclusion of Landlord and Tenant Act 1954

Having been authorised to do so by an order of the            Court made on            under section 38(4) of the Landlord and Tenant Act 1954 (as amended) the parties agree that the provisions of sections 24 to 28 inclusive of the Landlord and Tenant Act 1954 (as amended) shall be excluded in relation to the tenancy hereby created.

  1. NEW TENANCY

This lease is a new tenancy for the purposes of the Landlord and Tenant (Covenants) Act 1995.

IN WITNESS whereof this lease has been duly executed as a deed (but not delivered until) the day and year first above written.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 10 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 10 of 13

SCHEDULE 1

(The Premises)

The land and buildings and structures known as Bebington High School Higher Bebington Road Bebington Merseyside shown for the purpose of identification only edged in red on the Plan.

SCHEDULE 2

(Easements and Rights granted)

1. Subject to the Tenant not interfering with any rights granted to any tenant under any lease existing at the Execution Date full right and liberty at any time at the cost of the Tenant to divert (both to the whole and any part of it) the route of any Service Media which the Landlord has the right to use pursuant to Schedule 3 of this Lease whether temporarily or permanently provided that:-

1.1 the Tenant shall give reasonable prior written notice of any such diversion to the Landlord and any other person so entitled;

1.2 all works of diversion shall be carried out in a proper and workmanlike manner in accordance with good practice current at the time and with good quality suitable and sufficient materials as to provide the Landlord and any other person so entitled with Service Media of at least equivalent size quality and capacity to those with are being diverted;

1.3 so far as possible the passage or running of the Services through such Service Media shall not be disrupted and the Tenant will provide temporary arrangements during any period of diversion of permanent Service Media.

2. A right to build upon and to demolish maintain repair replace and renew any buildings upon the Premises to enable the Tenant to comply with or perform its obligations and exercise its rights under the Project Agreement.

3. A right of support and shelter for the Premises from any Adjoining Premises owned by the Landlord.

4. A right (subject to the provisions of paragraph 1 of this Schedule) to the free and uninterrupted passage and running of all services from and to the Premises through and

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 11 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 11 of 13

along all Service Media from time to time within but not exclusively serving any Adjoining Premises.

SCHEDULE 3

(Rights excepted and reserved)

1. A right for the Landlord and all those authorised by the Landlord to enter upon the Premises for the purpose of fulfilling any obligations on the part of the Landlord pursuant to the Project Agreement and for all purposes mentioned in this lease but subject to complying with the obligations of the Landlord in the Project Agreement.

2. A right (subject to the provisions of paragraph 1 of Schedule 2 of this Lease) to the free and uninterrupted passage and running of all services from and to any Adjoining Premises through and along all Service Media from time to time within but not exclusively serving the Premises.

3. A right for the Landlord and all those authorised by the Landlord to enter those parts of the Premises which are not built upon at all reasonable times (having regard to the Tenant’s obligations under the Project Agreement) on giving reasonable notice (except in emergency) and the right to inspect construct lay maintain repair replace alter or renew any Service Media and to make connections to any Service Media within the Premises the person exercising this right doing as little damage and causing as little inconvenience as possible and making good any damage to the Premises thereby occasioned and carrying out all works in a proper and workmanlike manner in accordance with good practice current at the time and with good quality suitable and sufficient materials and at no time shall the exercise of the Landlord’s rights under this paragraph 3 interfere with the Tenant’s obligations under the Project Agreement.

4. All rights of light or air now subsisting or which might (but for this exception) be acquired over any other land.

5. A right to build upon and demolish maintain repair replace and renew any buildings upon any part of any Adjoining Premises owned by the Landlord and any other land owned by the Landlord in such manner as the Landlord may think fit.

6. A right of support and shelter from the Premises for any Adjoining Premises owned by the Landlord.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 12 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 12 of 13

Schedule 4

(The documents containing incumbrances to which the Premises are subject)

The rights, reservations, covenants and other matters referred to in the Registers of Title Number MS435412.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 13 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 13 of 13

THE COMMON SEAL of WIRRAL )
BOROUGH COUNCIL )
was affixed to this Deed in the )
presence of
: )

…………………………………….
As authorised officer

THE COMMON SEAL of WIRRAL )
SCHOOL SERVICES LIMITED )
was hereunto affixed in the presence of:)

Director

Director/Secretary

If you click on any of the buttons below, you’ll be doing me a favour by sharing this article with other people.

EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake

EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake

EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake

                                                                          

Surjit Tour (left) at a recent meeting of Wirral Council's Standards and Constitutional Oversight Committee
Surjit Tour (left) at a recent meeting of Wirral Council’s Standards and Constitutional Oversight Committee

The background to this story is that last year Wirral Council accidentally divulged to me around two hundred people’s names, dates of birth, national insurance numbers, job titles and whether they were in the Merseyside Pension Fund (that Wirral Council administers) or not.

This is my response to Wirral Council (and ICO on this matter).

Dear Surjit Tour, Caroline Flint (ICO) and others,

Thank you Mr. Tour for your letter of 28th April 2015 (your reference ST/CG) and the email from ICO’s Caroline Flint dated 30th April 2015 (ICO case reference number RFA0568370). As both communications cover the same topic I am writing this joint response in reply.

I will deal first with an error in the response in the email from ICO. The first sentence in that email states “Thank you for raising your concern with us about Wirral Metropolitan Borough Council’s (Wirral MBC’s) handling of your personal data.”

None of the personal data that this matter relates to is about myself.

Moving to Mr. Tour’s letter of the 28th April 2015, paragraph 2 correctly states that I requested “eight lengthy contracts/leases” (one of which is the PFI contract with Wirral Schools Services Limited that this matter relates to).

Although not implicitly stated, it is implied that I was provided with eight lengthy contracts/leases and that this request “did impose a considerable strain on the officers”.

However four were not provided (the BAM Nuttall contract came into effect during the 2014/15 financial year, the development agreement (dated 9/1/2008) and bond (dated 6/10/2008) with Pochin Land and Development Limited (relating to the Birkenhead ASDA Compulsory Purchase Order) was refused and so was Wirral Council’s agreement with Neptune Developments with regards to the Birkenhead Masterplan proposals).

Two leases were provided (I would estimate each at being around 200 pages long). Two contracts were also provided (including the PFI contract) which are each around 500-1000 pages long. In the case of one of the leases (the New Brighton Marine Point lease) two entire copies of the lease were provided (when I only asked for one). As one of the two copies provided of that lease has a Land Registry official copy stamp on it (so presumably the copying was done by Land Registry) I would respectfully point out that the “considerable strain on the officers” referred to in your letter in making a second copy of that lease (then providing a second copy of that lease to myself with the Land Registry copy) was unnecessary.

In the last sentence of your letter you refer to Regulation 9 of the Accounts and Audit (England) Regulations 2011 which requires the documents to be made available for public inspection twenty working days before the date appointed by the auditor for local government electors to exercise their rights to either ask questions or make an objection.

For the 2013/14 audit, this date was the 18th August 2014. Therefore in order to comply with the regulations the documents should have been made available in the twenty working days leading up to the 18th August 2014 (which was the 21st July 2014 to the 15th August 2014).

As specified in your letter the PFI contract was available for inspection by myself on the 12th September 2014 (a month later than the timescale in the legislation you refer to). The copy of the PFI contract I was given on the 12th September 2014 was incomplete and it was the following month before I received the missing pages of the contract (which was after the accounts for that year had been closed by the auditor).

There were similar problems with the member expense forms as those given to me in September 2014 were also incomplete (or related to the wrong financial year) with the rest given to me in October 2014.

Therefore as the information was provided a month (or in some cases two months) later than the legislation specified I dispute your assertion that “The difficulties were compounded by the short timescales permitted by Regulation 9 of the Accounts and Audit (England) 2011 to produce the documents you had requested that related to the accounts of the Council”.

Had the documents been open for inspection and I had received copies prior to the 18th August 2014 (in compliance with the regulation you refer to) I would agree with you, however they were not.

Moving to the points made in page three of your letter, I was unaware (until I read your letter) of the existing right of inspection to admission agreements under schedule 2 Part 3 paragraph 11 of the Local Government Pension Scheme Regulations 2013.

I refer you to one of the admission agreements in the PFI contract specifically Schedule 19, Part 3, page 4/5 of the PFI Contract:

“3 (i) The Administering Authority shall from the date referred to in paragraph (ii) of this clause admit to participate in the benefits of the Scheme every employee of the Transferee Admission Body –

(a) whose name appears in the List annexed to this Agreement where he is identified as being a member of the Scheme by virtue of being an employee of the Administering Authority (hereinafter referred to as “the List”) or

(b) whom, by notice in writing given to the Administering Authority, the Transferee Admission Body may from time to time nominate provided that any person so nominated must be eligible to become a member of the Scheme.”

The Administering Authority referred to is Wirral Council. Therefore the list of names, dates of birth, job descriptions, NI numbers is of former Wirral Council staff whose employer was changed from Wirral Council to that of the PFI contractor.

You state in the second paragraph on page 3 “The amount of any such deficit would be determined by such factors as salary and age of the employee”. However the list does not include salary details of employees. Therefore as this information does not form part of the admission agreement or annexed list I dispute your statement that “That information would therefore be relevant to any assessment of the financial risk to the Council brought about by the PFI Contract.”

I might also point out that the admission agreement refers to a bond or indemnity with an insurer (Schedule 18 Parts 3 pages 14-17) to cover this sort of situation which reduces the risk of such liabilities falling on Wirral Council. Unfortunately the name of the insurer is not provided on the copy of the contract I have but the admission agreement states this insurance is to a limit of £67,000 (for that admission agreement which is one of three in the contract).

As I am publishing this response to ICO and Mr. Tour, I am also publishing the email from ICO that it refers to and the letter from Mr. Tour.

I have made a determination as data controller (see s.32 of the Data Protection Act 1998) that having regard to the special importance of the public interest in freedom of expression, the fact that I’m publishing my response (which could lead to confusion unless the email from ICO and letter from Wirral Council is also published at the same time), ICO’s view that Wirral Council breached the Data Protection Act 1998 as well as other reasons, that it is in the public interest for these documents to be published.

Finally, although I appreciate your point about whether s.34 of the Data Protection Act 1998 applies to the list is a matter for Wirral Council and ICO to come to a view on, at the very least there appears (from my perspective) to have been maladministration on the part of Wirral Council.

Providing documents requested during the audit outside the timescales you referred to in your letter and indeed in some cases after the accounts were closed prevented me from exercising my right to object to the auditor or to ask questions of the auditor before the accounts were closed at the end of September 2014.

As you are Monitoring Officer for Wirral Council, I draw your attention to section 5A of the Local Government and Housing Act 1989 and the duty of a Monitoring Officer to write a report (circulated to all councillors, the Chief Executive and the Chief Financial Officer) and for this report to be considered at a future Cabinet meeting within a set time period if there has either been a contravention of any enactment or rule of law by the authority or maladministration. I therefore await your response as to whether you will be writing such a report.

Yours sincerely,

John Brace

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

from: casework@ico.org.uk
to: john.brace@gmail.com
date: 30 April 2015 at 15:42
subject: Data Protection Concern: RFA0568370[Ref. RFA0568370]

30 April 2015

Case Reference Number RFA0568370

Dear Mr Brace

Thank you for raising your concern with us about Wirral Metropolitan Borough Council’s (Wirral MBC’s) handling of your personal data.

We want to know how organisations are doing when they are handling information rights issues. We also want to improve the way they deal with the personal information they are responsible for. Reporting your concerns to us will help us do that.

Our role is not to investigate or adjudicate on individual concerns but we will consider whether there is an opportunity to improve the practice of the organisations we regulate. We do this by taking an overview of all concerns that are raised about an organisation with a view to improving their compliance with the Data Protection Act 1998 (DPA).

From the information provided to us it does appear that Wirral Council has breached the DPA as it has acknowledged disclosing third party data in error. Wirral MBC has stated they have recovered the information disclosed inappropriately. They have also specified that requests made under the Audit Act in the future should not include any personal information which would enable particular individuals to be identified unless the requester can demonstrate that the disclosure is in the public interest to the extent that it should override the individual’s right to privacy.

It is now Wirral Metropolitan Borough Council’s responsibility to explain to us how it intends to improve its information rights practices in relation to reducing the possibility of such inappropriate disclosures in the future. Although we do not intend to write to you again, we will keep the concerns raised on file. This will help us over time to build up a picture of Wirral MBC’s information rights practices.

Thank you for bringing this matter to our attention.

If you are dissatisfied with the service you have received, or would like to provide us with feedback of any kind, please let me know. Further information can also be found on our website by following the following link https://ico.org.uk/concerns/complaints-and-compliments-about-us/complain-about-us/

Yours sincerely

Caroline Flint
Case Officer
01625 545 258


The ICO’s mission is to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

If you are not the intended recipient of this email (and any attachment), please inform the sender by return email and destroy all copies. Unauthorised access, use, disclosure, storage or copying is not permitted.
Communication by internet email is not secure as messages can be intercepted and read by someone else. Therefore we strongly advise you not to email any information, which if disclosed to unrelated third parties would be likely to cause you distress. If you have an enquiry of this nature please provide a postal address to allow us to communicate with you in a more secure way. If you want us to respond by email you must realise that there can be no guarantee of privacy.
Any email including its content may be monitored and used by the Information Commissioner’s Office for reasons of security and for monitoring internal compliance with the office policy on staff use. Email monitoring or blocking software may also be used. Please be aware that you have a responsibility to ensure that any email you write or forward is within the bounds of the law.
The Information Commissioner’s Office cannot guarantee that this message or any attachment is virus free or has not been intercepted and amended. You should perform your own virus checks.


Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

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

Department of Transformation
and Resources
Joe Blott
Strategic Director for Transformation
and Resources

Town Hall, Brighton Street
Wallasey, Wirral
Merseyside, CH44 8ED
DX 708630 Seacombe
Website: www.wirral.gov.uk

date 28 April 2015

to John Brace
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
my ref ST/CG
service Legal and Member Services
tel 0151 691 8569
fax 0151 691 8482
email surjittour@wirral.gov.uk

Dear Mr Brace

DISCLOSURE OF PERSONAL INFORMATION IN ADMISSION AGREEMENT FORMING PART OF THE COUNCIL’S PFI CONTRACT

I refer to your letter of 19 January and to our subsequent meeting which culminated in your return of the personal information which was inadvertently disclosed to you when a copy of the PFI Contract was provided to you on 12 September 2014.

You will recall that in a written request dated 25 July 2014 you had exercised your right under Section 15 of the Audit Commission Act 1998 (“ACA”) to inspect and receive copies of over 300 invoices, eight lengthy contracts/leases and all member expense forms for 2013 and 2014. These documents related to the Council’s accounts for 2013/14.

The request for those documents did impose a considerable strain on the officers who were required to locate and copy those contracts after redacting commercially sensitive and personal information from those documents in accordance with the requirements of the Data Protection Act 1998 and Article 8 of the European Convention on Human Rights. Article 8, as you may know, requires a public authority to show respect for a persons private life and not to interfere with that right except as is in accordance with the law and is necessary (amongst other things) in the interests of the economic wellbeing of the country or for the protection of the rights and freedoms of others.

I should emphasise that the non-redaction of the personal pension information was not intentional. The information was overlooked amongst the thousands of pages of the documentation which you had requested under Section 15 of the ACA. The difficulties were compounded by the short timescales permitted by Regulation 9 of

www.wirral.gov.uk (LGC logo) Awards 2015 Winner Most Improved Council

the Accounts and Audit (England) 2011 to produce the documents you had requested that related to the accounts of the Council also by the sickness absence of one of the Council’s officers who was dealing with your request.

I have looked carefully into the legal consequences of the inadvertent disclosure of the personal information in the PFI Contract and have indeed taken Counsel’s advice on the matter. My conclusions are set out below.

Section 34 of the Data Protection Act 1998 contains an exemption from the requirement to comply with the non-disclosure provisions of the Act if any personal data consists of information which the Data Controller is obliged to make available to the public under any enactment.

The non-disclosure provisions are defined in Section 27 of the same Act and include the first data protection principle which requires Data Controllers to process personal data both fairly and lawfully.

If however the processing is necessary for compliance with any legal obligation to which the Data Controller is subject, then the requirement to process personal data fairly and lawfully does not apply.

The applicable legal obligation is Section 15 of the ACA which gives a right to any local government elector to inspect all contracts relating to the accounts which are to be audited. There is an exception for information which can identify a particular employee of the Council and also for personal information outside that description ie non-employees of the Council if the information enables a particular individual or individuals “to be identified and the Council’s Auditor considers that it should not be inspected or disclosed”.

In the particular circumstances of the PFI Contract the Auditor had not been requested to authorise non-disclosure. The volume of the documents running into several thousands of pages which you had requested rendered it simply impracticable within the short timescales to seek the Auditor’s opinion on whether the personal information should be disclosed. You must remember the context in which the personal information in the PFI Contract was inadvertently disclosed. It was one of many documents that had to be sifted for personal information and commercially sensitive information.

That however does not end the matter since there is a Judgment of the Court of Appeal in the case of Veolia ES Nottinghamshire Limited v Nottinghamshire County Council and Others 2010 EWCA CIV 1214 which decided that Section 15 of the ACA must be interpreted in a manner which is to ensure compliance by the Council with the rights conferred on individuals by the Human Rights Act 1998 and in particular the right to a private life contained in Article 8 of the European Convention on Human Rights to which I refer above.

The advice I have received is that Section 15 of the ACA should be interpreted in such a way that the Auditor’s prior consent to non-disclosure is not required where it would be impracticable to obtain that consent eg because of the volume of documents required to be submitted to him in the short period of time allowed by the Legislation for production of contracts which relate to the Council’s accounts.
It does not of course follow that the Council’s duty not to interfere with Article 8 Rights of the individuals named in the Admission Agreement of the PFI Contract automatically overrides your right as a local government elector to see that information if it formed part of the contract which you were entitled to inspect.

2
There is a public interest that is to be considered which is that the local government elector or indeed a member of the public should normally enjoy full disclosure of information which is relevant to the Council’s true financial position and which would enable them possibly to detect any wrong doing by the Council or its employees.

In this regard I would draw your attention to Schedule 2 Part 3 paragraph 11 of the Local Government Pension Scheme Regulations 2013 which imposes an obligation on the Council to make a copy of an Admission Agreement available for public inspection at its offices. Details of the employees of the PFI Contractor who had been transferred to the contractors employment from the Council under the Transfer of Undertakings (Protection of Employment) Regulations are relevant to an assessment of the Council’s financial position. Under the Local Government Pension Scheme Regulations 2013 if a contractor were to default in his obligations to make pension contributions in respect of those employees or were to become insolvent, the Council would have to meet any deficit in the Pension Fund that arose as a result. The amount of any such deficit would be determined by such factors as salary and age of the employee. That information would therefore be relevant to any assessment of the financial risk to the Council brought about by the PFI Contract.

Furthermore such employees of the PFI contractor are only entitled to remain in the Local Government Pension Scheme if they continue to be employed in connection with the provision of the services comprised in the PFI Contract. Members of the public would need to know the identities of the contractors employees who were admitted to the Pension Scheme under the Admission Agreement in order to check whether they were continuing to work on the PFI Contract and therefore still entitled to remain in the Local Government Pension Scheme with the attendant financial risk to the Council and thereby council tax payers if the PFI contractor were to default in payment of pension contributions or become insolvent.

If therefore that personal information had been drawn to my attention l would have had to weigh in the balance the public interest in disclosing information relating to the Council’s financial position and the identity of employees who were only entitled to remain in the Pension Scheme whilst they remain employed on the PFI Contract, against the invasion of those members privacy if their identities, dates of birth, and national insurance numbers were made known to you.

I have to say that if I had been called upon to make that decision I would have redacted the personal information and not disclosed it to you unless you had been able to satisfy me that you required that information in circumstances which related to those aspects of the public interest to which l have referred above.

It is evident from the contents of your letter of 19 January and our subsequent meeting that you yourself do not believe that the public interest in disclosure of the identities of the members of the Pension Scheme in the PFI Contract was more potent than the respect which the Council is required to show for their privacy under Article 8. Your reasons for seeking disclosure of the PFI Contract had nothing to do with your concern over the Council’s financial exposure to potential deficits of PFI contractors in the Local Government Pension Scheme or to any concerns that the PFI employees who had been allowed to retain membership of the Local Government Pension Scheme were abusing that Scheme by retaining their membership when they were no longer working on the PFI Contract. You have acted responsibly by returning that personal information to me because you recognise that it did not serve the purpose you had in inspecting the PFI Contract in relation to the Council’s accounts for 2013/2014.

3

In future I propose to ensure that future requests to inspect documents under the ACA should not include any personal information which would enable the identity of particular individuals to be ascertained unless you (or any person wishing to inspect the accounts) can demonstrate that the disclosure of that information is in the public interest to the extent that it should override the individuals right to privacy.

Finally I should add that as from 1 April 2015 Section 15 of the Audit Commission Act 1998 has been replaced by Section 26 of the Local Audit and Accountability Act 2014. Under that Act there is no longer a requirement for the Council to seek the prior consent of the Auditor before withholding any personal information in the documents relating to the Council’s accounts which a local government elector is entitled to inspect. It is a recognition by Parliament that the prior involvement of the Auditor is not workable having regard to the short timescale for inspection of the documents and the often voluminous nature of those documents. There are however transitional provisions which mean that the 1998 Act will continue to apply to the inspection of accounts for the year 2014/15.

I am sending a copy of this letter to the Information Commissioner so that he is made fully aware of the Council’s investigation into your complaint and the complicated legal framework within which the Council has to work particularly when it is confronted by a request from the public to inspect a large volume of documents.

Yours sincerely and signed on behalf of
Surjit Tour
Head of Legal and Member Services

(signature of Jane Corrin)

Jane Corrin
Information and Central Service Manager
Transformation and Resources

If you click on any of the buttons below, you’ll be doing me a favour by sharing this article with other people.

38 more pages of the Wirral Schools Services Limited private finance initiative (PFI) contract with Wirral Council

38 more pages of the Wirral Schools Services Limited private finance initiative (PFI) contract with Wirral Council

38 more pages of the Wirral Schools Services Limited private finance initiative (PFI) contract with Wirral Council

                                          

I posted the first 17 pages of Wirral Council’s contract with Wirral Schools Services Limited, followed by the next six pages of the contract last month. This took it to the definitions as far as “benchmarking”.

At the weekend I scanned in the rest of the pages that define terms used in the contract (which come to a further 38 pages). This is from page 7 onwards. The next page after that deals with third-party rights.

The Wirral Schools Forum meets tomorrow evening to discuss where to find the £2.3 million of savings to its budget to pay for it. This is not because the price of the contract is going up considerably year on year, but because Wirral Council have decided to stop making a £2.3 million contribution to it each year. In total the annual contract payments are ~£11 million a year. Wirral Council receive an annual grant of £5.472 million towards this and a further £2.972 million from schools for the services under the contract (such as cleaning, caretaking et cetera). This leaves £2.586 million that in earlier years Wirral Council has paid, but next year has decided to cut its contribution by £2.3 million on top of a further £600,000 reduction this year.

It looks like (although it’s not confirmed yet), according to the papers for tomorrow evening’s Wirral Schools Forum (agenda item 3 PFI and Central Budget Review – Verbal Update (Previous report from 8th October attached)) that at least £1 million of this £2.3 million saving will come out of cuts to SEN Top ups/independent school fees (£600,000), statements (£200,000) and support for SEN (£200,000). None of the schools covered by the PFI contract are special schools.

Below are the definitions (from page 7 onwards) and the next page after that deals with third-party rights. Wirral Council plan to publish the complete contract by 31st December 2014 under a new transparency regime (imposed by central government).

Wirral Council Wirral Schools Services Limited PFI Contract page 7 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 7 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 8 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 8 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 9 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 9 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 10 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 10 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 11 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 11 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 12 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 12 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 13 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 13 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 14 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 14 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 15 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 15 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 16 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 16 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 17 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 17 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 18 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 18 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 19 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 19 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 20 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 20 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 21 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 21 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 22 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 22 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 23 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 23 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 24 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 24 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 25 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 25 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 26 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 26 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 27 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 27 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 28 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 28 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 29 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 29 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 30 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 30 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 31 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 31 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 32 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 32 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 33 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 33 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 34 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 34 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 35 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 35 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 36 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 36 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 37 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 37 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 38 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 38 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 39 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 39 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 40 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 40 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 41 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 41 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 42 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 42 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 43 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 43 definitions
Wirral Council Wirral Schools Services Limited PFI Contract page 44 1.3 Third Party Rights
Wirral Council Wirral Schools Services Limited PFI Contract page 44 1.3 Third Party Rights

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks:

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

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

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

                    

Continues from The first 17 pages of Wirral Council’s contract with Wirral Schools Services Limited. This is a further six pages in the same contract.

THIS AGREEMENT is made on 27 March 2001.

BETWEEN:

(1) WIRRAL BOROUGH COUNCIL of Town Hall, Brighton Street, Wallasey, Wirral, Merseyside, CH44 8ED (the “Authority”; and

(2) WIRRAL SCHOOLS SERVICES LIMITED a company incorporated under the laws of England and Wales with registered number 41156367 whose registered office is at Frogmore Park, Watton-at-Stone, Hertford SG14 3RU (“Project Co”).

BACKGROUND:

(A) By virtue of sections 13 and 14 of the Education Act 1996, the Authority as local education authority is under statutory duties to secure that efficient primary and secondary education are available to meet the needs of the population of its area and that sufficient schools for providing such education are available for its area.

(B) By virtue of section 16 of the Education Act 1996, the Authority as local education authority may, for the purposes of fulfilling the above duties, establish and maintain primary and secondary schools.

(C) By a notice dated 17 November 1998 in the Official Journal, the Authority invited expressions of interest from appropriately qualified tenderers for the provision of accommodation and related support services for eight secondary schools and one primary school in accordance with the Government’s Private Finance Initiative.

(D) Project Co has submitted a proposal which, as negotiated through the negotiated tender process, has been agreed to by the Authority.

(E) The Authority and Project Co have agreed to work together in a spirit of co-operation to achieve the objectives of the Project. The Authority and Project Co have agreed to carry out the Project on the terms and conditions set out in this Agreement.

(F) The Project is a private finance initiative project within the meaning of the Housing Grants, Construction and Regeneration Act 1996.

IT IS AGREED as follow:

RMLIB01 #659790 v14 03/04/2001 15:25

PART 1 – INTERPRETATION

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement (including the Background), the following terms shall, unless the contract otherwise requires, have the following meanings:

“1999 Act” means the Local Government Act 1999;

“Academic Year” means from the first day to the last day (excluding holidays) of the school year, such period not to be more than 195 days;

“Accommodation Actual Completion Date” means, in respect of the Accommodation Works at a Site, the date on which those Accommodation Works are Complete, being either the date stated in the certificate issued persuant to Clause 14.6 (Completion) or if this date is disputed in accordance with the Fast Track Resolution Procedure, the date determined under that procedure, as being the date upon which such certificate should have been issued;

“Accommodation Completion Date” means, in relation to the Accommodation Works at a Site, the date set out in column (1) of the Schedule of Key Dates by which such Accommodation Works must be Complete;

“Accommodation Services” means the services described in the Accommodation Services Output Specifications;

“Accommodation Services Output Specifications” means the specifications contained in Schedule 5 (Accommodation Services) as may be amended by a Variation or otherwise in accordance with this Agreement;

“Accommodation Works” means the works listed in Schedule 3 Part 4A;

“Acquired Rights Directive” means Council Directive 77/187 EEC as amended;

“Act of Vandalism” means a wilful, deliberate or malicious act carried out by Authority staff or pupils, guests, visitors or other persons authorised by the Authority who are properly on the relevant Site which results in damage to the relevant Facility or Site or any Fixed and/or Moveable Equipment thereon;

“Actual Date of Completion” means:

RMLIB01 #659790 v14 03/04/2001 15:25

(a) in respect of the Initial Works at a Site, the date on which those Initial Works are Complete, being either the date stated in the certificate issued persuant to Clause 14.4 (Completion) or if this date is disputed in accordance with the Fast Track Resolution Procedure, the date determined under that procedure, as being the date upon which such certificates should have been issued; or

(b) in respect of any Variation Works, the date on which the Variation Works are Completed in accordance with the relevant Variation Report agreed or determined (as appropriate) pursuant to Clause 32 (Variations) and certified as such pursuant to Clause 14.4 (Completion);

“Adjudication” means the procedure set out in paragraph 3 of Schedule 12 (Dispute Resolution);

“Adjudicator” means an adjudicator appointed under paragraph 3 of Schedule 12 (Dispute Resolution);

“Affected Party” means a Party affected by the occurence of the events listed in paragraphs (a), (b) and (c) of the definition of Force Majeure;

“Agenda 21” means the action plan establishing a framework for law in the field of sustainable development known as “Agenda 21” adopted at the United Nations Conference on Environment and Development held in Rio de Janeiro in June 1992;

“Agent” means Societété Générale of SG House, 41 Tower Hill, London, EC3N 4SG and its successors and assigns;

“Alternative Scheme” means one or more pensions scheme(s) each of which is approved or capable of approval under Chapter 1 Part XIV of the Income and Corporation Taxes Act 1988 or the trustees of such a scheme as the case may be;

“Amended Plans” has the meaning given in Clause 32.12 (Plans);

“Ancillary Documents” means:

(a) the Shareholder’s Agreement;

(b) Project Co’s memorandum of association and articles of association;

(c) the D&B Contract;

(d) the Support Services Management Agreement;

RMLIB01 #659790 v14 03/04/2001 15:25

3

(e) the Direct Agreements;

(f) the D&B Contract Performance Guarantee; and

(g) the Support Services Management Agreement Performance Guarantee;

“Annual Debt Service Cover Ratio” or “ADSCR” whilst the Initial Funding Agreements are in force shall have the meaning given to Senior Debt Service Cover Ratio in the Initial Funding Agreements and thereafter means in respect of any period for which it falls to be calculated the ratio of A:B where:

A is the aggregate of Cash Available for Debt Service for that period; and

B is the Annual Debt Service Obligations for that period;

“Annual Maintenance Programme” means the Maintenance programme agreed or determined pursuant to Clause 19.3 (Annual Maintenance Programme);

“Annual Net Third Party Profit” means Gross Third Party Revenues earned in respect of third party use during a Year less the Third Part Costs incurred in respect of third party use during that Year;

“Annual Utility Services Consumption Targets” has the meaning given in paragraph 2.1 of Part 6 (Utility Services) of Schedule 4 (Payments);

“Appeal” means all or any of the following:

(a) an appeal to the Secretary of State in accordance with Section 78 of the Planning Acts against:

(i) a conditions attached to the Full Planning Permissions or Variation Planning Approvals and/or a refusal of a planning application for Planning Approvals and/or Variation Planning Approvals; or

(ii) non-determination of a planning application for Planning Approvals and/or Variation Planning Approvals; or

(b) the reference of a planning application to the Secretary of State under Section 77 of the Planning Acts,

and the expression “to Appeal” shall be construed accordingly;

RMLIB01 #659790 v14 03/04/2001 15:25

4

“Approved Leased Equipment” means sanitary equipment, fire detection and prevention systems, telephone systems, photocopiers and vehicles;

“Arbitration” means the procedure set out in paragraph 4 of Schedule 12 (Dispute Resolution);

“Arbitrater” means an arbitrator appointed in accordance with paragraph 4 of Schedule 12 (Dispute Resolution);

“Asbestos” means any of the following minerals; crocidolite, amosite, chrysolite, fibrous actinolite, fibrous antthophyllite, fibrous tremolite and any mixture containing any of those minerals;

“Asset Register” means, with respect to each Facility, the asset register to be compiled by Project Co pursuant to Clause 22.18 (Asset Registers);

“Associated Company” means, in respect of a relevant company, a company which is a Subsidiary or a Holding Company of that relevant company or a company which is a Subsidiary of a Holding Company of that relevant company but not that relevant company itself and, in the case of Project Co, shall include each of the Consortium Members (the terms “Holding Company” and “Subsidiary” bearing the meanings defined in part XXXVI of the Companies Act 1985);

“Authority’s Confidential Information” has the meaning given in Clause 48.1 (The Authority’s Confidential Information);

“Authority’s D&B Contract Direct Agreement” means the direct agreement of the same date as this Agreement between the Authority, the D&B Contractor and Project Co;

“Authority’s Service Adviser” means the person appointed by the Authority (and notified to Project Co) to act pursuant to Clause 40 (Representatives);

“Authority’s Share” means the percentage figures in the fourth column of the table set out below corresponding to the amount of Cumulative Capital Expenditure at the relevant time, as shown in the first column of the table set out below:

Cumulative Capital Expenditure Project Co’s Share Cumulative Cost to Project Co Authority’s Share
£0 – £0.6 million 100% £600,000 0%
£0.6 – 1.2 million 75% £1,050,000 25%

RMLIB01 #659790 v14 03/04/2001 15:25

5

£1.2 – 1.8 million 50% £1,350,000 50%
£0.6 – 2.4 million 25% £1,500,000 75%
Over £2.4 million 0% £1,500,000 100%

“Authority’s Solicitors” means Rowe & Maw of 20 Black Friars Lane, London EC4V 6HD;

“Authority’s Support Services Management Direct Agreement” means the direct agreement of the same date as this Agreement between the Authority, the Support Services Manager and Project Co;

“Authority’s Works Adviser” means the person appointed by the Authority (and notified to Project Co) to act pursuant to Clause 40 (Representatives);

“Availability Deduction” has the meaning given in Part 1 (Definitions) of Schedule 4 (Payments);

“Base Case Financial Model” means the financial model as at the Effective Date setting out the basis on which the financing of the Project and the costs of and revenue from the Project have been calculated by Project Co (including the assumptions used, the cell logic network for the financial model software and any software and accompanying documentation necessary to operate the financial model) in the Agreed Form;

“Bebington” means Bebington High School;

“Bebington Asset Register” means the asset register to be compiled by Project Co pursuant to Clause 22.18 (Asset Registers);

“Bebington Headlease” means the lease between the Authority and Project Co substantially in the form set out in Part 1 (Bebington Headlease) of Schedule 1 (Land);

“Bebington Site” means the land identified in the Bebington Headlease and shown edged red on Plan B;

“Benchmarked Price” has the meaning given in paragraph 2.4 of Part 8 (Value for Money Testing) of Schedule 4 (Payments);

“Benchmarking” means subjecting a Support Service to the market price comparison procedure set out in Part 8 (Value for Money Testing) of Schedule 4 (Payments) with the aim of ensuring that the Support Service being tested is provided

RMLIB01 #659790 v14 03/04/2001 15:25

6

Continues at 38 more pages of the Wirral Schools Services Limited private finance initiative (PFI) contract with Wirral Council.

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks:

Privacy Preference Center

Necessary

Advertising

Analytics

Other