The 25 ways in which the Wirral Council Cabinet decision about Lyndale School is flawed
Here are my thoughts on a few aspects of the recent Cabinet decision last Thursday evening about Lyndale School.
Q1. So who was the decision with regards to Lyndale School made by?
A1. The decisions about Lyndale School were made by Cllr Phil Davies (Labour, Birkenhead and Tranmere), Cllr Tony Smith (Labour, Upton), Cllr Bernie Mooney (Labour, Liscard), Cllr Stuart Whittingham (Labour, Upton), Cllr Chris Meaden (Labour, Rock Ferry), Cllr Chris Jones (Labour, Seacombe), Cllr Adrian Jones (Labour, Seacombe), Cllr George Davies (Labour, Claughton) and Cllr Pat Hackett (Labour, New Brighton).
Q2. But that’s only 9? I thought the Cabinet had 10 councillors on it!
A2. Cllr Ann McLachlan (the tenth Cabinet Member) wasn’t present at the meeting.
Q3. So does the fact she was missing alter things?
A3. No, nine out of ten is still enough to be quorate (enough councillors there to make a decision). One less councillor means one less vote to be counted, one less person possibly speaking and therefore a shorter meeting. There is no deputy system for Cabinet Members. There was no vote held during the meeting where her vote (one way or the other) would’ve made a difference to the outcome anyway. According to an email, Councillor Ann McLachlan is “away” from 29th August 2014 to the 8th September 2014 which covers the evening this meeting was held on the 4th September 2014.
Q4. So what’s she Cabinet Member for anyway?
A4. Cllr Ann McLachlan is the Cabinet Member for Governance, Commissioning and Improvement
Q5. Sorry I’m too busy laughing that Wirral Council has a Cabinet Member for “Improvement”. You’re joking right?
A5. No, I’m not.
Q6. So what was the Cllr Phil Davies’ amendment (seconded by Cllr Bernie Mooney) to the original recommendation?
A6. The recommendation (as amended) is here. Cllr Phil Davies’ amendment to the original recommendation is as follows:
Add new additional item to recommendation after paragraph 1.2:
- 1.3 That the Director of Childrens’ Services to ensure that Education, Health and Care Plans for all pupils of the Lyndale School are completed by the 31st October.
As Cllr Phil Davies said at the time of proposing his amendment, “It’s really important we have them in place as soon as possible.” I am presuming here that implies 31st October 2014 rather than 31st October 2015 as he didn’t specify a year at the Cabinet meeting.
Q7. So what’s an “Education, Health and Care Plan” anyway?
A7. It’s a legal requirement on Wirral Council to produce an “EHC needs assessment” (an assessment of the educational, health care and social care needs of a child or young person) on request because of the legal requirements placed upon them by the Children and Families Act 2014 c.6 (sections 33-34, 36-60).
Q8. So who can make such a request for an EHC Plan?
A8. Either parents, the young person his or herself, a person acting on behalf of a school or a person acting on behalf of a post-16 institution.
Q9. Does Wirral Council’s Cabinet fall into one of these categories?
A9. No, but Cabinet has other legal powers to make recommendations to the Director of Childrens’ Services who is Julia Hassall if they so wish.
Q10. OK, so going back to the Cabinet decision. What is the first legal concern you have about it?
A10. Well it relates to Regulations 8-11 of SI 2012/2089.
Q11. Interesting so what are Regulations 8-11 of SI 2012/2089 about?
A11. It is about key decisions, publicity in connection with key decisions, general exception and cases of special urgency.
Q12. OK, so is the decision about Lyndale School a “key decision”?
A12. Yes, key decisions are defined in Regulation 8 as a Cabinet decision (executive refers to the Cabinet) which is defined as follows:
“8. (1) In these Regulations a “key decision” means an executive decision, which is likely–
1 (a) to result in the relevant local authority incurring expenditure which is, or the making of savings which are, significant having regard to the relevant local authority’s budget for the service or function to which the decision relates; or
(b) to be significant in terms of its effects on communities living or working in an area comprising two or more wards or electoral divisions in the area of the relevant local authority.
In determining the meaning of “significant” for the purposes of paragraph (1) the local authority must have regard to any guidance for the time being issued by the Secretary of State in accordance with section 9Q of the 2000 Act (guidance).
Q13. So do Wirral Council regard it as a “key decision”?
Q14. So what’s the problem then?
A14. Well the regulations state in relation to a key decision that “that decision must not be made” unless certain requirements in Regulations 9-11 are met.
Q15. So what are the requirements in Regulations 9-11?
A15. That Wirral Council has to either “28 clear days” before the Cabinet meeting of the 4th September 2014 both publish a document on its website (and have that document open for inspection) which states the required information outlined in 9(1)(a) to 9(1)(h), or inform Cllr Moira McLaughlin and publish a notice on its website 5 clear days before the meeting or get Cllr Moira McLaughlin’s permission that the meeting is urgent and publish a notice to that effect on its website.
Q16. So did Wirral Council publish a document 28 clear days before the meeting containing the information in 9(1)(a) to 9(1)(h)?
A16. No, however it did publish a document 28 clear days before the meeting containing information in 9(1)(a), 9(1)(b), part of 9(1)(c) and 9(1)(d).
Q17. So they didn’t publish the information required by part of 9(1)(c), 9(1)(e), 9(1)(f), 9(1)(g) and 9(1)(h)?
Q18. Did they get Cllr Moira McLaughlin’s permission and publish a notice to that effect then?
Q19. Did they inform Cllr Moira McLaughlin and publish a notice to that effect then?
Q20. So what happens then if they don’t do these things?
Q20. They’re not allowed to make the decision. The regulations are quite clear on that “the decision must not be made”. Therefore the decision is unlawful/ultra vires.
Q21. So you’re alleging the decision on Lyndale School is unlawful, but they’ll just go ahead and implement it anyway?
Q22. Are there any other grounds too on which it could be challenged?
A22. Yes. The decision was m