Was the Wirral Council Cabinet decision to consult on closing Lyndale School lawful?
Labour’s Cllr Tony Smith (Cabinet Member for Children and Family Services) explaining at a Wirral Council Cabinet meeting why he thinks the Cabinet should agree to consultation on closure of Lyndale School
Unless you’ve been on holiday or don’t read the papers you can’t fail to have heard about the decision by Wirral Council’s Cabinet last Thursday to start a consultation on the closure of a primary school called Lyndale School in Eastham for children with special educational needs. This was reported on this blog and in the Wirral Globe. There is also a large petition against closure that had attracted over five thousand signatures before the decision at the Cabinet meeting.
Over a year ago (on 10th September 2012) a law came into effect called The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 which changed the way Wirral Council’s Cabinet made decisions and introduced some further requirements as well as checks and balances.
The report seeking approval to consult on the closure of Lyndale School deems this decision to be classed as a “key decision”. There are four regulations in The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 which relate to key decisions.
Regulation 8 merely defines what a key decision is.
9. (1) Where a decision maker intends to make a key decision, that decision must not be made until a document has been published in accordance with paragraph (2), which states—
(a) that a key decision is to be made on behalf of the relevant local authority;
(b) the matter in respect of which the decision is to be made;
(c) where the decision maker is an individual, that individual’s name, and title if any and, where the decision maker is a decision-making body, its name and a list of its members;
(d) the date on which, or the period within which, the decision is to be made;
(e) a list of the documents submitted to the decision maker for consideration in relation to the matter in respect of which the key decision is to be made;
(f) the address from which, subject to any prohibition or restriction on their disclosure, copies of, or extracts from, any document listed is available;
(g) that other documents relevant to those matters may be submitted to the decision maker; and
(h) the procedure for requesting details of those documents (if any) as they become available.
(2) At least 28 clear days before a key decision is made, the document referred to in paragraph (1) must be made available for inspection by the public—
(a) at the offices of the relevant local authority; and
(b) on the relevant local authority’s website, if it has one.
(3) Where, in relation to any matter—
(a) the public may be excluded under regulation 4(2) from the meeting at which the matter is to be discussed; or
(b) documents relating to the decision need not, because of regulation 20(3), be disclosed to the public, the document referred to in paragraph (1) must contain particulars of the matter but may not contain any confidential, exempt information or particulars of the advice of a political adviser or assistant.
As you can see from the above, the decision “must not be made” until a document has been published containing the information specified in (a) to (h) above at least 28 clear days before the meeting on Wirral Council’s website.
I emailed the Chair of the Families and Wellbeing Committee Cllr Wendy Clements and she pointed out in her reply that the Forward Plan listed the item Permission to Consult on an Option for Change at Lyndale School on 18th December 2013.
Yes, this entry on the Forward Plan complies with regulation 9(1)(a) and 9(1)(b).
However does it comply with 9(1)(c) and include “where the decision maker is an individual, that individual’s name, and title if any and, where the decision maker is a decision-making body, its name and a list of its members”? No it just states “Decision due: January 2014 by Cabinet”, with no list of who the individuals that make up the Cabinet are.
Yes, regulation 9(1)(d) is complied with, however 9(1)(e) is not. Although there is a link now to the Cabinet report, this report was published on the 9th January 2014 therefore wouldn’t have been in existence on 18th December 2013. When this item was published on the Forward Plan this document wasn’t listed. Nor did it state the address from which copies of it could be obtained (Regulation 9(1)(f)).
Also as this report was submitted to the Cabinet, in contravention of Regulation 9(1)(g) this entry in the Forward Plan did not state that “other documents relevant to those matters may be submitted to the decision maker” or how to obtain these (Regulation 9(1)(h)).
There is provision within regulation 10 and regulation 11 for a decision to be made without following the notice requirements in Regulation 9, however this is only with the permission of the Chair of the relevant overview and scrutiny committee (in this case the Chair of the Families and Wellbeing Policy and Performance Committee) Cllr Wendy Clements. I emailed Cllr Wendy Clements asking her was she asked and did she give her permission, her reply was “In response to your specific questions; no, I was not asked, and no I did not give permission.”
The School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007
Moving onto another legal requirement, regulation 8 of the The School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007 which states
8. Any governing body, local education authority or adjudicator (where applicable) when—
(a) consulting on proposals;
(b) considering or determining proposals;
(c) considering what are related proposals;
(d) making decisions on matters relating to implementation
must have regard to any guidance given from time to time by the Secretary of State.
This is the fifty-seven page guidance issued by the Secretary of State. Was this guidance that Wirral Council “must have regard to” included as an appendix to the report? No it wasn’t.
Had this guidance been read by Cabinet prior to making the decision to proceed to consultation they would’ve read things like this:
“The Special Educational Needs Improvement Test (Paragraph 4.55)
When considering any reorganisation of provision that would be recognised by the LA as reserved for pupils with special educational needs, including that which might lead to some children being displaced through closures or alterations, LAs, and all other proposers for new schools or new provision, will need to demonstrate to parents, the local community and Decision Makers how the proposed alternative arrangements are likely to lead to improvements in the standard, quality and/or range of educational provision for children with special educational needs. All consultation documents and reorganisation plans that LAs publish and all relevant documentation LAs and other proposers submit to Decision Makers should show how the key factors set out in paragraphs 4.59 to 4.62 below have been taken into account by applying the SEN improvement test. Proposals which do not credibly meet these requirements should not be approved and Decision Makers should take proper account of parental or independent representations which question the LA’s own assessment in this regard. ”
“4.59 Decision Makers will need to be satisfied that the evidence with which they are provided shows that LAs and/or other proposers have taken account of the initial considerations and all the key factors in their planning and commissioning in order to meet the requirement to demonstrate that the reorganisation or new provision is likely to result in improvements to SEN provision. ”
So bearing the above in mind, I’m starting two polls on this blog.
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