Opinion of Senior Counsel, Hugh Tomlinson QC, on Freedom of Information “ban” by Cheshire West and Chester Council –

This site is moving to a new web address.  If you’re a follower, please browse to the new site and register again to continue to receive updates or email notifications.  The old ones will cease to work in around a month’s time, when the old blog is taken down.

All the old content has been moved across and nothing else has changed.

Thanks for your time, and for following and I’ll see you there soon:

www.wirralinittogether.wordpress.com

Silhouette of scale

Following Cheshire West & Chester Council’s hideously misconceived “ban” on my statutory FoI and personal Data Protection querying rights, the time has come to release the opinion of Senior Counsel Hugh Tomlinson QC, who has granted his permission.

This “ban” lasted for 20 months, between October 2009 (my leaving date) and June 2011 – original www.whatdotheyknow.com request here – It took an instruction to possibly the country’s most senior privacy lawyer for the council to realise its behaviour was ultra vires and it had gotten too big for its little boots.

The “ban” flew in the face of the council’s own internal Freedom of Information and Data Protection policies (and certainly every other council’s policies up and down the country).  These are always phrased to embrace accessibility, to promote openness and transparency and to speak up for the free and uninterrupted flow of information.  However, the Council’s most senior Data Protection person on site, who understandably had a large hand in drafting Council policy, admitted to me that he was “never consulted” over this defensive and retrograde step.

Neither was this “ban” democratically scrutinised by elected councillors – possibly because there was a danger elected officials may have taken their role seriously and “raised a red flag” upon spotting the folly of it all.

So it became the private, back-office, unscrutinised work of the monitoring officer, Simon Goacher, and his “team” – as trotted out in an email, heavy on the “flannel”, from Councillor Alan McKie, chair of the Staffing Committee.  Despite the council’s lofty public claims to “democratic accountability”, when a “ban” on freedom of information and data protection became a necessity, the legitimate and compelling public interest never really got a look in.

The council have now claimed, in response to a subsequent FoI request of mine that no information is held” on this subject.

With that, the obvious question arises, “Why on earth did they feel the need to do it in the first place?

And now, into the mix comes Hugh Tomlinson QC’s opinion, which gives clarity, and makes an important distinction between historical and future requests.  For me, the key statement is made in paragraph 5:

Opinion of Counsel

The Council failed to give any assistance by clarifying the meaning of the clause, preferring instead to cave in enigmatically.

With the prospect of serious litigation being mounted, the council declared they “did not accept the provisions within the agreement were unlawful”, but it was all a long time ago, and they were now “happy to confirm that [I] was not prohibited from making requests under the [FoI and DP Acts]”.

I’ve interpreted this as the Council running away, taking their little ball with them, and turning back to shout, “We were right all along anyway….”

My reading of counsel’s opinion is:

If an employer proposes a compromise agreement with an FoI / DP gagging clause which seeks to prevent an employee or ex-employee from making FoI / DP requests of this employer, specifically related to the historical circumstances which have led to an employee’s departure, that is OK.

If an employer proposes a compromise agreement with an FoI / DP gagging clause which seeks to prevent an employee or ex-employee from making FoI / DP requests of this employer (or any other employer) in the future that is not OK.

The fact that the agreement is signed in the presence of independent legal advice appears to have some bearing on the former, but not the latterwhich appears to maintain that contract law trumps statutory rights.

But I am NOT a lawyer.  Any comments on this subject are most welcome…

Site Meter

UPDATED – Concealing malpractice / enabling abuse with a Compromise Agreement / Gagging Clause

This site is moving to a new web address.  If you’re a follower, please browse to the new site and register again to continue to receive updates or email notifications.  The old ones will cease to work in around a month’s time, when the old blog is taken down.

All the old content has been moved across and nothing else has changed.

Thanks for your time, and for following and I’ll see you there soon:

www.wirralinittogether.wordpress.com

Gagged prisoner tied up with rope uid 1402469

FoI and Local Authority Gagging Clauses

Some years ago, a council employee, in dispute and soon to lose his job, opted to sign a compromise agreement.  The document and its terms were placed before him, as a ‘full and final settlement’.  All arrangements were funded by the employer; independent legal advice was given, and the solicitor’s signature secured.  All legal requirements had therefore been met.  The employee’s signature on the dotted line would forfeit his right to an Employment Tribunal, along with the option to pursue any existing or future legal claims against the employer.  All appeared to be in order and the employee’s pen hovered.

But an extra clause had been inserted, compelling him to forgo his right to submit any request under the Freedom of Information Act 2000 or the Data Protection Act 1998 – from that day forward – and not apparently restricted to this employer.  This very particular “gagging clause”, perhaps in use for the first time, had been devised by the local authority’s legal team.

It was a very difficult decision to make even without this, and much rested upon it.  In addition to the loss of his job and the personal upheaval, there was now an underlying legal poser to wrestle with, “Can I successfully contract out of my FOI / DP information request rights?”

But the deal was soon done, and a promising career was cut short, the pain eased slightly by the payment of a small ‘redundancy’ amount.

Such was the life-changing power in the hands of a consensus of council top brass, brought together for the closing chapter of a bitter and entrenched dispute, spanning almost 3 years.  With a failed raft of trumped up disciplinary charges recently behind them, careful steps were now being taken to save face and reach agreement.  Confidentiality shrouded everything.  The employee, a family man with young children, knew he wouldn’t be welcomed back.  Blowing the whistle had lost him his livelihood.  He’d faced a stark choice: sign here, and accept what’s on offer, or sign there, fortnightly at the job centre.  Concede, or take your chances at an employment tribunal in the New Year, where the outcome will be a lot less certain.

And come January, once the situation had calmed and the adrenalin levels had dropped, another question came to the forefront – “What would the legal consequences be of an approach to the council for information?”

This was where the Information Commissioner’s Office (ICO) first went onto the record:

“If your former employer refused to deal with your requests they would be likely to be in breach of the above legislation……. However if you exercise your information request rights there may be consequences such as legal action for breach of contract. Whether the clause you mention is a fair contract term would depend on the particular circumstances involved and the nature of the agreement you signed.”

The special gagging clause in use here had provided a unique twist, pressing the ICO into declaring an unusual, double-edged stance.

I decided to conduct some ‘WhatDoTheyKnow’ research into this, which began when snow covered the ground.  I approached 345 English councils, requesting annual totals for compromise agreements and FOI / DP related gagging clauses – drawn up in circumstances of dispute, grievance or whistle-blowing.  I discovered a rising trend with time, and to date, have unearthed 4,410 agreements, equating to an average of 15 per council over the last 6 years.  As for the clauses, unlike the January 2011 snow, they were extremely thin on the ground.  Where they do exist, they’re a ‘fail-safe’, used to supplement the one in general use – which follows a more established path: to deter signatories from discussing their workplace woes at career end and beyond.  There is always a threat of “clawback” – whereby an employee breach would involve the employer suing for the return of the full amount received in settlement.  In a victory for one-sidedness however, the penalty for a post agreement employer breach remains elusive, possibly mythical.  The only parties generally permitted to know about the existence and wording of such agreements are the employee’s direct family, professional advisers, and the tax people.

There is at least one agreement however, where the gagging clause in use pushes the bounds of confidentiality to a startling extreme.

Back in November 2008, a social worker (let’s call him Mr X) blew the whistle on his council employer.  After being let down by the Audit Commission and CSCI (later the Care Quality Commission), he turned to the press.  His gagging clause was specific and cost the council £500.  They also handed over £44,500, and sought to prevent him from discussing with ANY third party, an entire range of whistle-blowing concerns.  The detail of these was shameful: financial abuse of disabled tenants – amounting to the unlawful deduction of £700,000+ from many of the council’s most vulnerable residents over several years; an ongoing refusal by senior managers to acknowledge that the practice was unlawful and should cease, and a campaign of bullying and abuse of power.   The council’s behaviour towards its own tenants (four of whom have since died) has since been ruled as disability discrimination by the Equality and Human Rights Commission.  An apology was also issued to Mr X for proven management bullying and abuse of power.  Worryingly, if he had ‘stayed bullied’, and not breached the gagging clause by going to the press, the public would never have known of the scandal; of the council’s failure to act; its lurch to secrecy; the public money squandered, and the protection and concealment that was gained by drafting a compromise agreement.  The public interest would have been so neatly circumvented.

Upon signing such an agreement, from the employee’s perspective, an onerous double layer of security descends.  They are told on the one hand, that they cannot take a specified action, and on the other, that they cannot reveal the existence of the agreement itself.  The effect: a hidden pact, funded by public money, draws a veil over the placing of a dubious gag, and potentially, details of the most deplorable behaviour.

It’s neat, it’s effective, and it’s going on everywhere.  But how many information governance or legal professionals in the public sector would regard such an approach reasonable, lawful, enforceable, or morally justified?  Is the levelling of the FOI / DP gag ultra vires?  Does the tactic sit well with publicly-funded bodies, amid their ongoing claims to openness and transparency?  Or is it an impulsive lunge towards institutionalised reputation management, done to conceal at all costs, and to make damn sure the employer emerges unscathed, with whatever’s hidden never seeing the light of day?  In the Mr X case, was there a collective sigh of relief as the ink dried on the paper, and as foul conduct and a multitude of publicly-funded sins were swept under the carpet?  A recent review undertaken by an independent consultant found the council involving itself in learning disabled abuse over a protracted period.

Central Government, the unions and most regulators regard compromise agreements and gagging clauses as justified, through the need to cut legal costs, avoid tribunals, and conserve public funds.  The process is often dressed up as ‘supporting employees’.  With free legal advice on tap, how can employees claim ignorance of the process and its consequences?  They can walk away with a financial settlement for their troubles, and ‘grasp the opportunity for a fresh start’.

But this can be at extreme personal cost.  Mr X had his life turned upside down, and was hospitalised due to the stress he had been placed under.  Not surprisingly, he holds a different view, “Compromise agreements should only be used in business sensitive cases.  They should never be used to suppress issues in the public interest.  They are consistently used as a reputation management tool and are an abuse of power.”  In Mr X’s case, the gag had a thoroughly chilling effect.  Such was the employer’s fear of exposure, the perfectly reasonable step of seeking legal advice would have breached Mr X’s agreement.

In June 2011, under threat of litigation led by Hugh Tomlinson QC, the council which had ‘opted out’ of its FOI / DP obligations backed down and withdrew the gagging clause, restoring the ex-employee’s rights.  The monitoring officer responsible for the ‘ban’ has moved, perhaps where he belongs, into the private sector.

Mr X’s ongoing battle with his council adversary and former employer has now moved to the ‘accountability’ stage.  A long awaited 250 page report, drawn up by the independent consultant and costing £1,000 per page has now been placed in the public arena, albeit anonymised to protect those potentially culpable.  However, the council, displaying a rather loose grasp on the true meaning of ‘accountability’, was not prepared to discipline two senior Social Services officers found to be at fault.  Instead, despite acknowledging years of learning disabled abuse, the council pre-empted the report’s release by allowing the two to depart their posts quietly and by ‘mutual consent’, probably under compromise agreements, probably “paid off” and potentially in receipt of positive or neutral work references to furnish to any future employers.

These two officers received an equal share of £220,000 of public money.  Many people believe this was paid to buy their silence, keep them ‘on side’ and prevent them from dropping very senior personnel into hot water.

Paul Cardin

http://www.easyvirtualassistance.wordpress.com

Twitter: @eVirtual_Assist

1st October 2012

Link: Damning Internal Auditors’ report on Metropolitan Borough of Wirral’s approach to “Compromise Agreements”.

Within this post, there are some striking similarities to the content of the above article.

Site Meter

Anna Klonowski leaves her commission at Wirral Council – and Michael Frater’s departure

This site is moving to a new web address.  If you’re a follower, please browse to the new site and register again to continue to receive updates or email notifications.  The old ones will cease to work in around a month’s time, when the old blog is taken down.

All the old content has been moved across and nothing else has changed.

Thanks for your time, and for following and I’ll see you there soon:

www.wirralinittogether.wordpress.com

Woman passenger uid 1461192

I received an email this morning from Local Government Consultant and external investigator Anna Klonowski, in response to an email I sent last night regarding years of disability discrimination at Wirral Council – as discovered by Mike Smith of the Equality and Human Rights Commission:

From: Anna Klonowski
Sent: 27 July 2012 08:58
To: Paul C; Michael Frater
Cc: Graham Burgess; Green, Jeff E.; Phil Davies; Joyce Redfearn
Subject: Re: Disability Discrimination

Dear Mr Cardin,

I am no longer a member of the Wirral Improvement Board and have no commission with the Council. As a result I am unable to assist you further.

Kind regards

Anna

Anna Klonowski
Managing Director
AKA Ltd

www.akalimited.co.uk

Office Tel: 07824 531919


I’ve now decided to raise the issue of historical disability discrimination with Michael Frater, the LGA troubleshooter.  He is unlikely to be told about it by anybody, so I see it as my duty to make sure he gets all the information, acts on it now, prevents it recurring, and earns his money.

From: “Paul C” 

Date: Thu, 26 Jul 2012 23:36:27 +0100

To: Michael Frater

Cc: ‘Anna Klonowski’; Graham Burgess [email returned – address not known]; ‘Green, Jeff E. [Councillor]; Phil Davies [Councillor]

Subject: Disability Discrimination

Dear Mr Frater,

Back in 2010, I visited one of Angela Eagle MP’s surgeries and raised the subject of Wirral Council’s unlawful charging policy.  This was something that I regarded as systematic disability discrimination.

This discrimination had been committed both prior to and since Social Services’ senior staff ignored the detailed submissions of a whistleblower (Martin Morton), who had told them it was wrong and unlawful.  But the Adult Social Services Department continued to deduct payments from the bank accounts of 16 learning disabled residents of three supported living accommodations in Moreton, Wirral.  It is believed this unlawful charging occurred for a period of up to 9 years, perhaps longer.  As you will be aware, Mr Morton, in return for his public-spirited actions was forced out of his job, and I believe he is now unemployed.

Quite apart from the proven bullying and alleged mobbing of Mr Morton, I viewed the taking of this money from vulnerable people as disability discrimination, as did Mike Smith, the Chair of the Disability Committee of the Equality and Human Rights Commission.  In addressing Angela Eagle’s initial query, Mike Smith had written to her on 29th December 2010, confirming this and I attach his letter for you to read.

Within the letter, Mike Smith states that this was disability discrimination, because he disagrees with Bill Norman’s opinion on it.  He goes on “…Mr Cardin’s concerns should be included in the inquiry (Anna Klonowski inquiry), in order to identify whether there are other issues or systemic problems that need to be addressed.”

In other words, disability discrimination was “a given” – and the inquiry should now focus on looking for other issues or problems needing to be addressed.

However, whether through breakdown of communication, malpractice or incompetence, the law firm assuming the “disability discrimination role”, DLA Piper UK LLP (see pp. 240 to 249 of AKA report), did not address Mike Smith’s concerns at all.  They were either instructed, or took it upon themselves to adopt a much narrower remit, determining whether or not there HAD BEEN disability discrimination throughout a number of different time periods, eventually deciding overall that there hadn’t.  Which flew in the face of Mike Smith’s opinion and failed to address his stated requirements.

Prior to this letter, the now suspended Director of Law Bill Norman had reached his own conclusion, in Mike Smith’s opinion wrongly, that there hadn’t been disability discrimination.  I am concerned that a reasonable assumption by any third party would consider this arrangement to be suspect, given that Mike Smith’s concerns weren’t addressed, and that large amounts of public money in the form of solicitors’ fees were involved.

As I’m sure you will appreciate, unaddressed disability discrimination is an extremely urgent, serious and compelling subject, and I would be very grateful if you could acknowledge receipt of this email and then make enquiries of Anna Klonowski, Bill Norman, Surjit Tour and any other officers who may have been in a position to allow sloppiness or malpractice to creep in where it should not be permitted to,

Best regards,

Paul Cardin

UPDATE   27th August 2012

Although the above email, dated 26th July was sent into the ether over a month ago, I’ve had nothing back from Michael Frater.  I’ve decided to email Joyce Redfearn, the chair of the LGA Improvement Board instead, hopefully to shake things up and get them a bit more motivated.  This is after all an important issue.  We shouldn’t allow things to slide and permit DLA PIPER UK to get away with what many now regard as sloppy practice, possibly aimed at saving the Council (who commissioned AKA and presumably footed the bill for DLA Piper’s toil) a hefty compensation bill – yes – how shockingly cynical our world has become:

From: Paul C
Sent: 27 August 2012 22:20
To: ‘Joyce Redfearn’
Cc: ‘Michael Frater’; Paul Burstow; ‘Angela Eagle’
Subject: FW: Disability Discrimination

Dear Ms Redfearn,

There’s an important issue covered in the emails below; that of Wirral Council’s historical disability discrimination, carried out deliberately over several years – raised with the Equality and Human Rights Commission some time ago, and with Mr Frater last month.

However, despite being “remunerated” a reported £1,200 per day, he has failed to acknowledge the original email, nor the reminder sent recently.  I’d appreciate it if you could acknowledge receipt of this one with me, and then discuss and action the matters raised with Mr Frater, possibly during the Improvement Board sessions which you are privileged to chair.  You may wish to remind him that the issue has now been taken up again with my local MP Angela Eagle, in part due to his ongoing failure.

I was told today that Paul Burstow MP, the minister concerned, is writing to me this week to update me on the related issue of an ongoing threat of abuse to vulnerable people – on Wirral and further afield, created and enabled by Wirral Council’s quite calculated failure to safeguard their wellbeing,

Best regards and thank you in advance,

Paul Cardin

UPDATE   2nd September 2012

I’ve received the following reply from Joyce Redfearn, chair of the LGA Improvement Board at Wirral Council:

Dear Mr Cardin

I am acknowledging receipt of your email as you requested.

The issue you raise is one to which Wirral Council should respond .  Mr Frater has now left the Council so I am forwarding your email to the acting Chief Executive Mr David Armstrong who will ensure that your email receives appropriate attention.

Best wishes

Joyce Redfearn


By my estimate, Michael Frater earned approximately £75,000 for his stint of 3 day weeks  at Wirral.  If you divide £75,000 by £1,200, you arrive at the number of days worked, which is…. 62 and a half.

It’s a relief that he wasn’t taken on for a whole year, because this would have translated to an annual salary of  approximately £313,200.

It’s also a pity he couldn’t respond to my July email (see above) and say, “This is nothing to do with me…. this is for the Council to address” – maybe because this would have flown directly into the face of just about everything those big names in central government e.g. Grant Shapps, Paul Burstow have been shouting… that the LGA has been sent in to sort the place out !

And alas, the Wirral public won’t get any answers from the troubleshooter.  Mr Frater has now packed up and gone…

OUT NOW – on ICO website – ‘Personal Privacy’ trumps the wellbeing of Wirral’s learning disabled citizens

This site is moving to a new web address.  If you’re a follower, please browse to the new site and register again to continue to receive updates or email notifications.  The old ones will cease to work in around a month’s time, when the old blog is taken down.

All the old content has been moved across and nothing else has changed.

Thanks for your time, and for following and I’ll see you there soon:

www.wirralinittogether.wordpress.com

UPDATE   24th January 2013

My appeal is now registered with HM Courts & Tribunals Service under case number EA/2012/0264

UPDATE   23rd December 2012

An appeal has been lodged today with the First Tier Tribunal.  More updates will follow in the New Year

UPDATE   3rd December 2012

Four months on, the ICO Decision Notice which began its painful journey towards me back in August, finally landed on the doormat.  As expected, it was a bit of a kick in the teeth –  for anyone who’s vulnerable, a disabled person, and living on Wirral.  To sum it up in a sentence, it effectively found that the public interest was served through two officers not being held to account, receiving six figure sums in return for their silence, and being allowed to move on.

Just to update everybody, the two officers referred to, rather than being disciplined, were paid off a total of more than £220,000 in public money, and were allowed to leave the council in January 2012, the day before the release of the ‘full’ Anna Klonowski report.  They were both gagged, and seem to have received what looks like a ‘clean bill of health’.

So, when you’re a prime mover at the heart of abuse towards learning disabled people, the consequences of which was their bank accounts being stripped of a total of £700,000+ and you work for Wirral Council, you have very little to fear, knowing you can move on, avoid sanction, and potentially feel free to abuse again, with your pockets stuffed with public cash.
It seems you also have nothing to fear from the Information Commissioner’s Office who, unlike investigator Anna Klonowski, have bizzarely summed up the very calculated and lengthy abuse which saw whistleblower Martin Morton being bullied and driven from his job, as ‘mistakes and errors’.
Is the law itself wrong here?  Or is this decision to place ‘personal privacy’ above the wellbeing of disabled people just incidental to the day to day work of career bureaucrats, who seem to have no inkling into how their decisions affect the lives of our most vulnerable people?
All UK Councils do after all have a statutory duty to protect vulnerable people within their jurisdiction.  What happened to that?  How on earth did those people become the targets of over a decade of abuse – from the very body entrusted with protecting them?  Are we witnessing the deliberate covering up of Misconduct in Public Office?  I will be appealing to the First Tier Tribunal.
The Decision Notice below is a legal document.  Please read on….
2 12 12 - noone and fowler - FS50438500 - cover page
2 12 12 - noone and fowler - FS50438500 - page12 12 12 - noone and fowler - FS50438500 - page22 12 12 - noone and fowler - FS50438500 - page32 12 12 - noone and fowler - FS50438500 - page42 12 12 - noone and fowler - FS50438500 - page52 12 12 - noone and fowler - FS50438500 - page62 12 12 - noone and fowler - FS50438500 - page72 12 12 - noone and fowler - FS50438500 - page82 12 12 - noone and fowler - FS50438500 - page42 12 12 - noone and fowler - FS50438500 - page92 12 12 - noone and fowler - FS50438500 - page92 12 12 - noone and fowler - FS50438500 - page102 12 12 - noone and fowler - FS50438500 - page112 12 12 - noone and fowler - FS50438500 - page102 12 12 - noone and fowler - FS50438500 - page122 12 12 - noone and fowler - FS50438500 - page13

hands grabbing money uid 1342954

BREAKING ~ 2nd November 2012

Wirral Council have finally confirmed the size of the pay offs to Mike Fowler and Maura Noone, who left the Council under gagging clauses, within compromise agreements in January 2012:

Good Morning,
With regard to your complaint with the ICO, please find below the information the Council can disclose to you; this relates to the 2 payments made by the Council.
There was a total payment made in each case which was severance pay + notice + 3 months pay.
Head of Support Services   Finance Department
109,496.45 which compromised:
74,276.52 (Severance)
16,881.93 (equivalent of 12 weeks notice)
18,338.00 (3 months salary)


Assistant Director, Head of Wellbeing DASS
111, 042.95 which compromosed
75,823.95 (Severance)
16,881 (equivalent of 12 weeks notice)
18,338 (3 months salary)


The Council remains of the opinion that other information requested is exempt from disclosure under Section 40(2) of the FOIA as it contains Personal Data.  The council considers that it would be unfair on the individuals concerned to disclose this personal data and therefore would be in breach of the 1st principle of the DPA 1998.
I have copied the ICO into this response. Kind Regards
Jane Corrin
Information Manager
Wirral Council

TOTAL = £220,539.40 

Please read to the end of this post.  A very dangerous situation is developing on Wirral.

The following is an FoI request I placed with Wirral Council back in January 2012:

http://www.whatdotheyknow.com/request/dass_recent_departure_of_two_sen

It’s been attracting so many hits lately, if you type into Google the two word phrase “Officers Departure”, it comes out top.

The background to the request is a very controversial and rather sad one.  Wirral Council has now been exposed as an abusive and failing organisation and its current Chief Executive Jim Wilkie (Departed Wirral on 7th June 2012) even had to admit publicly that this was the case – after a whistleblower, former Wirral social worker Martin Morton, blew the whistle on outrageous conduct by senior Department of Adult Social Services staff.  This involved in part, the taking of £500,000 over a period of up to 9 years from the bank accounts of 16 learning disabled tenants of Council Supported Living accommodation in the Moreton area of Wirral.  Reportedly, five of the recipients of this financial abuse have since died.  Martin Morton had been trying for years to have the unlawful process stopped, but to no avail.  He quickly became the target of intense bullying and alleged mobbing, before being forced from his job.  There were also suspicions of a similar unlawful process applied to council tenants in Balls Road, Birkenhead, and beyond – now confirmed as the total “reimbursed” rises to £700,000.  Jim Wilkie’s admission is buried inside the following document.  See clause 7.1:

http://democracy.wirral.gov.uk/mgConvert2PDF.aspx?ID=21125

Two independent investigations followed; the first into bullying and abuse of power, carried out by Martin Smith of North West Employers), and the second, far more wide ranging, looking into corporate governance, the way the Council had set up and monitored Social Services’ contracts within its own jurisdiction, and much more, within a broad remit.  It seems that neither of these investigations were documented adequately and that interviews were not tape recorded or minuted.  Due to this apparent sloppiness, which I’m led to believe was hard fought for by the CIPD accredited investigators, convenient “escape hatches” may subsequently appear for the investigators and the investigated to clamber out of as and when required.  AKA Associates no longer have any ties to Wirral Council.  The reason for this remains unknown.  Link to Anna Klonowski Associates report:

https://docs.google.com/file/d/0BxrkIjRDgrB-OGE5YzZiNWItMjQ4Yy00NDU2LTk1NDAtMTQxYmRhN2FjODhh/edit?pli=1

The findings of the AKA report will not be explored here, suffice to say they uncovered serious failings in Corporate Governance and outrageous, abusive conduct by senior officers of the council (Employees 13 and 22) and some of the appointed care contractors.  The public have yet to see a fully open and unredacted copy of the report, revealing names.  Despite hollow assurances of a new found “openness and transparency”, only a limited number of officer, councillor, contractor and advisory bodies’ names have been made viewable within it.

Many months on, the Wirral public are also patiently waiting for some semblance of accountability.  It would normally follow that a discovery of proven abuse, carried out over a period approaching a decade, and which has been thoroughly investigated – with many of the perpetrators exposed – would be acted on.  However, it seems things are done differently on Wirral, and they may not be prepared to carry the process through to any form of public reckoning or accountability.  There seems to be little desire to satisfy the growing public need for action against the abusers.  The detailed findings of the 250 page report seem to be clear and conclusive, but many of the names still remain coded to hide the real IDs, and there’s no willingness as yet to follow through on previous promises to discipline the guilty, clear out the abusers and start afresh.

So, accountability-wise, nothing much has happened, save the issuing of strings of empty words, and the calling in of LGA / SOLACE colleagues at massive expense, to ‘put things right’.  As time drags on, and fine words are trotted out in place of action, the Wirral public are becoming concerned that:

1. They’re being taken for fools

2. Those in power are not going to risk letting go of it without a fight. (Remember, this council has been found to have abused its power repeatedly over many years.)

The above FoI request aims to get under the skin of the reasoning for the council doing what they did.  Here’s what they did:

1. Suspended two senior officers named by the whistleblower in 2008.

2. Investigated them under two nom de plumes; “Employee A” and “Employee B” (See this link to an excellent and very comprehensive website):

http://blowingthewhistleonareallyrottenborou.blogspot.co.uk/search/label/%22Employee%20A%22

3. Exonerated one, sent a letter to the other, before reinstating both.  The recently new in post Council Leader, Phil Davies chaired the meeting which allowed this at the time, back in 2008.

4. Suspended the same two officers again in 2011 following the release of the supplementary AKA report.

5. In January 2012, came to an agreement with both of them, allowing them to leave by “mutual consent” the day before the full AKA report was released to the waiting public.

When things came to a head the second time around, absolutely no disciplinary process appeared to be followed by those with the power to level gross misconduct charges.  Instead they deviated from the norm and pursued what appeared to be a fully choreographed “kid glove” approach, allowing the pair to leave, paying them an as yet unknown amount of public money (UPDATE: the total shared between the two was £220,000), perhaps with a “clean bill of health”, all wrapped up in a compromise agreement, potentially with a “gagging clause”.  This clause will almost certainly specifically disallow the signatories (including potentially the issuing body) from talking about any of the circumstances which led to the officers’ departure and the issuing of the agreement, beyond a close knit circle including legal advisers, unions, the tax people and members of the signatories’ immediate family.

The wider effect of this is that any and all references to learning disabled abuse as regards these two are very effectively concealed and put to bed; right here – inside a legal document.  The legitimate and compelling public interest into the council’s hidden workings (and the decisions made) which ended in learning disabled abuse, becomes frustrated and stifled.  It’s a perfect example of a “democratic deficit” – an obstacle to openness and transparency, and a means of sidelining any chance of justice – no more, no less.

How on earth did this situation come about?  And what are the consequences?  Worryingly for everybody on Wirral who has a vulnerable relative or friend, this abusive Council happens to be the very organisation entrusted with stamping out hate crime and disability abuse.  Incidents of hate crime within the UK are on the increase, and the issue is currently more prominent in the British media and psyche, and often  flares up in areas where the responsible authorities are known to be weak or abusive.

Perhaps one has to approach this from a different angle and ask, “If the two officers weren’t directly involved in proven disabled abuse, why were they hurried out of their jobs just one day before the full version of a damning independent report was to be issued?”

Those with the power to time the issuing of the report, and to time the disposal of “Employee A” and “Employee B”… are the same people.  They work(ed) at the very top; and are found and known to have abused power in the past.  But who can step in and do something?

Although this could very easily have been predicted, it’s now become clear that one of the dismissed employees doesn’t want to rest on his laurels and go into early retirement.   Strong suspicions continue that he will have been handed a tidy sum of public money.  But he is now setting out a “well-stocked stall” on the “LinkedIn” website, hoping perhaps to pick up a senior role at another public organisation e.g. another council; a health trust; a private care provider…

Wirral Council continue to drag their feet with the above FoI request and there’s no end in sight.  The Information Commissioner has been made aware of the dangers; Tim Kelsey, now formerly the Cabinet Office Transparency and Open Data Czar knows the dangers – these people and organisations have been informed.

I hope to hear from them soon, before it’s potentially too late……..

UPDATE    4th June 2012

Council Chief Executive Jim Wilkie has applied for early retirement.  See the following item from the Wirral Globe:

http://www.wirralglobe.co.uk/news/9740932.Wirral_Council_chief_asks_for_early_retirement/

It appears Mr Wilkie may be the next person to bail out.  His application is being rushed through with what looks like indecent haste, and he will most likely be allowed to go, with many benefits, and without facing accountability for his part in allowing the above dangerous situation to come about.  The Employment & Appointments committee will consider his application in just 3 days’ time.

We still cannot see who did what within the Anna Klonowski report because it remains redacted, with the important identifying details protected and hidden from public view.  It’s possible that the Chief Executive too will leave under the cover of a compromise agreement with a “gagging clause” – a legal document which will draw a veil over any malpractice.  This document will represent a “full and final settlement”.

We only have three days (until 7th June) to alert somebody with the power to step in and prevent this happening.  On 3rd June, the following updated message was sent to the DCLG; Grant Shapps; Francis Maude; Baroness Hanham and Tim Kelsey (Transparency & Open Data Guru):

Dear Sir,

There is a dangerous situation developing in my borough, which has been created by the failure of a council to apply disciplinary sanctions and make senior officers fully accountable following learning disabled abuse, and an ensuing failure to release vital information around this in the legitimate public interest, and in the interests of transparency.

One of two senior officers who left this council through “mutual consent”, potentially paid off, and almost certainly under a compromise agreement with a ‘gagging clause’ is now looking for work on the LinkedIn website.

(Link removed to protect person’s privacy)

Although the council’s CEO has admitted to learning disabled abuse; see 7.1:

http://democracy.wirral.gov.uk/mgConvert2PDF.aspx?ID=21125

…there has been zero accountability to follow.  Moreover, it looks as though the above two departing officers have been rewarded and had their activities effectively concealed.

I tried to notify the Council’s Monitoring Officer on 17th May 2012 of this danger, but without success.  I have very briefly notified Tim Kelsey at @tkelsey1 of this on Twitter on 17th May 2012.  A consultant, name of Michael Frater, is currently being paid £1,200 per day to sort this place out following the Anna Klonowski report, however the public have no idea what he is doing, what’s been achieved and whether he has the power to prevent those who should be held accountable from departing and being pensioned off,

best regards,

Paul Cardin

PS The Chief Executive, who I believe is responsible for the above situation coming about has applied to leave the council and his application is due to be heard on 7th June. I believe urgent intervention is required to prevent this happening.  See here: http://democracy.wirral.gov.uk/documents/s50004413/EVR%20Report.pdf

UPDATE   10th June 2012

Mr Wilkie was granted permission to leave on 7th June 2012, just hours before the release of a damning Audit Commission report into the conduct of  Wirral’s £multimillion highways contract.  In quite hideous fashion, and apparently in complete defiance of the compelling public interest, one of the individuals who voted to allow the Council’s most senior officer to leave was the new council leader, Phil Davies.  He had recently been making promising public pronouncements about “getting to the bottom of all this”, however in this case, it seems actions speak louder than words.

Link to Freedom of Information request asking about circumstances of Chief Executive’s departure:

http://www.whatdotheyknow.com/request/agreed_departure_of_chief_execut

Despite early notifications of this situation to those in power, no full response has yet been received from Tim Kelsey, Grant Shapps, Baroness Hanham, Francis Maude, or any person in central government with the ability to “call in” the decision and ask some searching questions.

Link to the blog of John Brace, local campaigner, with further details:

http://johnbrace.com/2012/06/07/employment-and-appointments-committee-wirral-council-762012-item-12-early-retirement-request-jim-wilkie-chief-executive/

UPDATE 29th June 2012

Wirral Council suspends three senior officers:

http://www.liverpoolecho.co.uk/liverpool-news/local-news/2012/06/29/exclusive-wirral-council-suspend-three-senior-officers-including-acting-chief-executive-100252-31287051/

The three are:

Bill Norman     Director of Law

Ian Coleman    Director of Finance (Acting Council CEO)

David Taylor-Smith     Former Deputy Director of Finance

UPDATE   3rd July 2012

Response in from the office of Grant Shapps MP.  Typically of central government, and officialdom in general, the letter answers a point not asked in the first place, and glosses over the crux of the letter – the threat of disabled abuse.  It opts to minimise and describes the issues as “accountability… transparency… pay and workforce… human resource” matters, and not “threat of disabled abuse”.

UPDATE   12th July 2012

A disappointing response has been received from a senior case officer at the Information Commissioner’s Office.  The personal privacy of two ex-employees, widely believed to have been actively and cynically involved in protracted learning disabled abuse, which is known to have involved the unlawful deduction of £500,000 from Supported Living tenants’ bank accounts over a period of up to 9 years, has been placed above the welfare of disabled and vulnerable people in the north west.

Here is the response in full (My working notes are in blue):

“12th July 2012
Case Reference Number FS50438500
Dear Mr Cardin
I am writing to you concerning 2 complaints which you have made to the Information Commissioner regarding Wirral Metropolitan Borough Council.
FS50416628 – Your request for information on the records of senior officer’s personal interests which are held by the council
FS50438500 – Your request for information on two senior council officers Council who left their posts by mutual consent following the findings of the AKA report
Both of these cases have now been allocated to me to investigate.
As regards FS50416628 I have written a decision notice which is currently with the signatory for consideration.
As regards FS50438500 I note from the wdtk website that the council has now responded to your request, albeit by repeating its initial response to you of February 2012. (In February 2012, the Council stated that it was an ‘exceptionally complex’ request and that Section 40(2) may apply to my request but they had not yet reached a decision on whether an exemption would apply.  They then requested additional time.  It is therefore erroneous to place on record that the Council “repeated a previous response”.  This appears to have been plucked from the air and has the unfortunate effect of mistakenly adding credence to the council’s response where the is actually very little or none.)
Having looked at this request I have to say that I do not believe that you will be able to obtain this information from the council. If your assumptions are correct then the information relates to potential disciplinary matters. (In part, the request asked for “details of any disciplinary charges either planned or levelled against the two officers”.  I never requested closer details of disciplinary mattersThe ICO are therefore mistakenly or deliberately misrepresenting some of the true purpose of the original request).  At the least it relates to employment matters relating to the two individuals, and how it came about that they left their positions with the council. This is, for the most part, a private matter between the council and the individuals’ concerned. I will explain further.
I have noted that concerns have been raised about the possibility of compromise agreements being paid out by the council.  (Compromise agreements are not ‘paid out’.  They are issued.  However, public money was paid out by the Council to the two departing officers.  The compromise agreements used here, through the use of a “gagging clause” serve to conceal the amount of  public money that was paid, which was most likely very large and which evades the public interest.  This very issue goes to the heart of the request.  The legitimate and compelling public interest demands that Wirral Council adhere to their public proclamations which promise a new, enlightened approach, based around openness and transparency.  Sadly, the recurring preference for “concealment at all costs” continues to fly in the face of that.)  You have also suggested that the timing of the individuals’ departure has left questions about their reasons for leaving their posts and whether this relates to the Anna Klonowski Report findings. (The two officers departed the day before the full version of the AKA Report was finally released.  Any competent person would conclude that once they were no longer employed by the council, they could escape any sanction suggested or resulting from the content of the AKA report.  Over six months on, the general public still don’t know who did what; who the abusers are.  Also, given that the now ex-Chief Executive who authorised these departures left the council himself the day before a highly-critical Auditor’s Report on a Highways Contract (finding that a director had probably broken EU contract rules) was released.  One can reach a safe conclusion that the timing of such departures is not coincidental.) I note that questions surrounding their departure have also been asked in the media.
You have said to the council that you are happy for it to anonymise the information before disclosing it to you. (I said that way back in January, over six months ago.)  It seems likely however that a motivated individual could obtain that information by various means should they decide to do so (Which only became apparent later (the Council decided to sit tight, hold onto the information and allow events to overtake them) – the names gradually crept out long after the request was placed). My initial research also suggests that it is fairly widely assumed who the two individuals are and that these assumptions are available on the internet. (They are now, but they weren’t in January, when I first asked the question.  “Late on parade”, the ICO only decided to investigate this last week, and the Senior Officer who did the investigating told me on the phone he had only spent a paltry 5 days on it.I also note your further comment to the council that one of the individuals concerned has now advertised on “Linked in”. Clearly therefore you already know, or have assumed who this person is, and so any redaction of identity alone would not be sufficient to anonymise the information (presuming that your assumption is correct). (This is a very recent development.  I asked in January.  But I am not the issue.  I know who it is, but the public do not, and did not in January.  If and when the Council responds, the information becomes global, when everybody gets to know.  Wirral decided to prevent this from happening.Given this I do not believe that the council can anonymise the information by merely redacting the names or the job roles of the individuals concerned. (Not now they can’t, but they could have if they’d obeyed the law and provided the information at the time, or else given a reason why they weren’t providing it.)
This means that the information would be personal data for the purposes of the Data Protection Act 1998 and that the data protection principles would apply to the disclosure which you are asking the council to make. (The amount of public money they received is a compelling matter for the public interest.  Private Eye suggest that the amount is in the region of £200,000, although I don’t know how accurate this is or where the information originated.  Jim Wilkie, the last Chief Executive’s pay off figures were released.  The CEO before him, Steve Maddox, received £157,000, which only became apparent following a grinding, intensive year long battle to gain access to the information.  (UPDATE: See the ICO Highlights for the Year 2012 – NORTH WEST)Judging by this particular case, it appears lessons have not been learned.)
Where personal data is under consideration the first data protection principle requires that the disclosure of the information is ‘fair and lawful’. In general this relates to whether the individual would expect information about them to be disclosed. In the case of a disclosure under the Freedom of Information Act this would be an expectation that information about them might be disclosed to ‘any member of the public’. This is because a disclosure under the Act is considered to be global rather than just to the applicant. When making this decision the Commissioner can consider whether any of the other circumstances of the case would make a disclosure of the information fair.
The Commissioner therefore needs to consider whether the individuals would expect that detailed information about the circumstances which led them to leaving their positions within the council would be disclosed to any member of the public. If that is not the case I must consider whether the circumstances of the case would make that fair in any event. (Can it be “fair” to protect e.g. the amount of public money two people widely thought to be abusers have received, whilst knowing that this protection is likely to result in placing a large number of vulnerable/disabled people into danger?)
The first thing to consider is that, in general, employers are under an implied duty of confidence to keep personal information on their personnel confidential. Assuming that your presumptions are correct, this information may relate to the individuals disciplinary history or records. The First-tier Tribunal has provided strong guidance in relation to the disclosure of employees’ disciplinary files. (I never asked for disciplinary files!!) In many cases in the past they have found that it would be unfair to disclose such information. For instance I would draw your attention to the Tribunals decision in Waugh v ICO & Doncaster College (EA/2008/0038) available at
http://www.informationtribunal.gov.uk/DB…(EA-2008-0038)%20Decision%2029-12-08.pdf
Similarly, in Lord Dunboyne v IC (EA/2011/0261 & EA/2011/0303) the Tribunal stated that:
“The Tribunal has – and will continue to – recognise the strong expectation of staff members that disciplinary matters are personal and to be kept private.” (As I did NOT ask for information on disciplinary matters or closer details, but merely “details of any disciplinary charges either planned or levelled against the two officers” – the above link is completely irrelevant to this case.  It is a false, “straw man” distraction and does not relate to my request.  The council website shows that two officers, (Employee A and Employee B) known to be these two, went through a disciplinary process in 2008 and were ultimately reinstated by a board which was chaired by the current Council Leader, Phil Davies.  There is no information on the council website to show that they went through any subsequent disciplinary process in the lead up to the release of the full AKA report in early January 2012.)
This is of course working to an assumption which you raised that their reasons for leaving relate directly to the findings in the Anna Klonowski Report. That is not a proven fact however and you recognise this within your request for information. The alternative is that the individuals left for entirely other, unrelated reasons.   If that is the case there appears to be a lesser argument for the employees’ expectations of privacy to be overridden. A disclosure of the information under those circumstances would therefore be even less likely to be ‘fair’.
Presuming that your assumption is correct, the wider issues surrounding this case can be taken into account in balancing whether a disclosure of the information would be fair. In some circumstances the legitimate interests of the public (Clearly present and growing fears about the likelihood of forseeable and avoidable disabled abuse actually coming to pass due to the authorities’ inaction would be a case in point) in having access to particular information can make a disclosure fair in spite of an individual’s general expectations that that information would not be disclosed. The arguments for this do need to be strong however due to the strong counter arguments supporting the privacy of the individuals. (I don’t think they trump the threat of abuse though do they?)  I actually asked for the following…..

1. all information you have which is connected to the
departure of the above two senior members of staff. This will
relate to meetings, hearings, discussions, and may be stored in the
form of recorded minutes, verbatim and non-verbatim notes, emails,
letters, memos, aide memoirs, whether electronically or manually.

2. details of the existence of any payments
made to the two members of staff in relation to their departure,
collectively or individually. This will include precise amounts,
the method of payment and the budget from which the payment was
derived.

3. details of the existence of any “compromise
agreements” signed by the two members of staff. This will include
confirmation of any ‘gagging clauses’ and whether a positive /
neutral / negative reference was provided regarding potential
future employment.

4. the names and addresses of all organisations /
bodies involved in providing legal advice to the two departing
officers. Please also provide details of meetings which occurred
including times, dates and matters discussed.

5. details of any disciplinary charges either
planned or levelled against the two officers in relation to the
failures which brought about their departure from the Council.

6. If either or both of the two officers were provided with a “clean
bill of health” regarding their time served at the council, please
provide a copy of this / these document(s).
It is suggested that these individuals are relatively senior council officers. This can also be taken into account in the balance. In essence, where a senior officer is concerned they should have a greater expectation that a disclosure of information about their actions may be necessary in order for the authority to be transparent and accountable to the public. This extends to any severance payments that the council made to them given that this would be paid from public funds. These are not of themselves overriding factors however and the decision still needs to be balanced and based upon all of the circumstances of the case.
However I must also bear in mind that the information that you requested does not specifically relate to the council’s actions or inactions which led to the Anna Klonowski report findings. You have asked for detailed information about the individuals leaving their posts. The information therefore relates more to the private lives of those individuals rather than to the council’s accountability. (My italics)

(I believe this last statement to be a direct kick in the teeth to the whole concept of public accountability – what hope does ‘the public good’ have with these as regulators???)
…Details of the council’s response and the actions it has taken following the report would attract a much stronger public interest argument towards disclosure. The release of the Anna Klonowski report has to some extent already opened the council’s actions to scrutiny, (nobody knows who did what.  The AKA Report remains redacted with no identifying names ascribed to the commission of the foul behaviour described within.  Wirral Council’s preference, whilst owning and controlling the report, is to continue concealing identifying names.  Officers & Councillors therefore continue to remain beyond the reach of effective scrutiny.however there is a public interest in the disclosure of the actions it has taken in response to that report (This is an extremely vague statement.  There has been no recognisable accountability to date; just gags; pay offs; more concealment, and even the broadcasting of another whistleblower’s name on the council websiteSome further senior officer suspensions are qualified as “neutral acts”.) so that the public can be reassured that this will not occur again. (What will not occur again?) The issue is where this impinges on personal privacy.
Although the council needs to be transparent and accountable for its actions, it also needs to comply with its legal obligations as regards the privacy of the individuals concerned. The information you have asked for goes to the heart of the individuals’ personnel matters with their employer. (The two officers appear to have been protected, gagged and paid off.  The problem with this is that Wirral Council may have enabled potential disabled abuse in the future, which was both forseeable and avoidable.  Nobody has yet been made accountable for abuse which has actually been admitted in writing and the person at the helm of the Council who allowed all this to occur has now left, leaving a “ticking time bomb” as a leaving present.) In effect, your request was widely drawn and encompasses the entire personnel process which led to the individuals’ leaving their posts at the council. As a result, any disclosure would be much more intrusive into the private lives of the individuals concerned. (What about the “ticking time bomb”?  What about the large, undisclosed amount of public money, apparently handed over as a reward in return for up to nine years of learning disabled abuse?)
I note your argument that one of the individuals concerned now appears to be advertising on Linked In’ however this not an issue which we are able to consider as relevant to the disclosure of the information that you have asked for in this case.
Balancing the above, I do not believe that a strong enough case can be made for the disclosure of the information to be ‘fair’ to the individuals concerned. In the terms of the Data Protection Act, the legitimate interests of the public in having access to that information do not override the fact that a disclosure would be an unwarranted intrusion into their private lives and affairs. (What about the “ticking time bomb”, the vulnerable/disabled people under threat?)
I realise that you will be disappointed that you are not able to obtain all of the information which you have asked for. Whilst I accept that if your analysis is correct there are certainly legitimate public interest arguments for some information to be disclosed, there are however also very strong arguments for information relating to an individual’s performance, personal privacy and their personal, private dealings with their employer which counterbalance, and override these interests in this case. (An employer in the care sector may take on one of these senior people unwittingly, and vulnerable / disabled people, expecting their welfare and wellbeing to be looked out for, may come under threat of abuse – far more serious than the privacy / private dealings justifications listed here, which pale by comparison)
Having said this, there may be a stronger case for the council to disclose any severance payments which it has made. The Accounts and Audit (Amendment No. 2) (England) Regulations 2009 require local authorities to publish severance payments for staff earning over £50,000, and in respect of those earning over £150,000, to publish both the amount and the name of the individual. I have therefore written to the council and asked it to let me know whether it is obliged by these regulations to publish any amounts paid to the individuals as severance payments, and if so, when it intends to make this information available. I will write to you again regarding this once I have received the council’s response.
Yours sincerely
[name of public servant removed]

Senior Case Officer

I placed a phone call with the above Senior Case Officer yesterday morning, during which he justified the ICO stance, claiming that his remit did not allow him to place the welfare of vulnerable and disabled people above that of the personal privacy and private dealings of these two ex- employees.

I told him I knew these two employees were employed by the Adult Social Services Department of a council which has independently been found to have abused power and has itself admitted to committing learning disabled abuseRather than provide accountability or some sort of reckoning, it has gagged and paid off suspected abusers and has independently been found to have engaged in the bullying of staff, including whistleblower Martin Morton.  Mr Morton was deliberately isolated in the workplace, allegedly mobbed and became the recipient of a calculated attempt to assassinate his character in a secret report, drawn up by senior officers.  Martin Morton’s health was severely damaged as a result of what most people would regard as behaviour verging on the criminal.

All this occurred despite the employer’s declared statutory duty of care for its employees’ health, laid out in the Health & Safety at Work Act.  Following this, in order to conceal the sordid details the council drew up the most draconian of compromise agreements, which included a £500 gagging clause designed to prevent Mr Morton from taking independent legal advice – a statutory human right, “set in stone” which cannot be taken away.  It also attempted to subvert article 43j within the Public Interest Disclosure Act, which provides whistleblowers with statutory protection.

A depressing by-product of the ICO erecting another obstacle to justice is that it provides much-needed succour to Wirral Council and to those potentially abusive senior members of staff still in office and still bent on evading accountability Despite the LGA Improvement Board’s welcome involvement, and “troubleshooter” Michael Frater’s extension until October 2012, the unaddressed failures can be laid at the door of the Council’s reluctance to openly identify the abusers and link them to the disgraceful malpractice discovered and described, but yet to be identified within the AKA report.  The suspension of three senior officers, and their “banishment from the workplace” may provide a ray of hope, as it’s possible their presence may have been creating obstacles beyond which accountability, co-operation and the public interest could not travel.

This weak and disappointing ICO approach, laid out by the Senior Case Officer above, seems particularly cold-hearted, with its blinkered failure to recognise or acknowledge the threat of disabled abuse, and its unwillingness to apply any pressure onto the council.  The ICO’s bureaucrats are effectively endorsing Wirral Council’s  “straight onto auto-pilot”, power abusing tactics of cover up; minimisation; denial; gagging; pay offs; obfuscation, with their dismissive, kneejerk trashing of the legitimate public interest.

Also effectively endorsed are the “information and data” failures, in the shape of Wirral Council’s entrenched and ongoing disregard for statutory law, in the shape of its historic reluctance to comply with the requirements of the Freedom of Information Act.

The senior officer at the helm of Freedom of Information for Wirral is Ian Coleman (Director of Finance, now departed in controversial circumstances…. via “the Wirral Way”).  Here is a link to more details regarding the “Statutory Investigation Process” and a preliminary investigation currently being mounted into the three Statutory Officers at the top of the council – all suspended (two of the three are now in the clear and have left…..)

http://democracy.wirral.gov.uk/documents/s50005267/Statutory%20Investigation%20Process%20Report.pdf

UPDATE 27th July 2012

I appear to have been fobbed off by the Department run by Paul Burstow MP.  They’ve assured me that the LGA Improvement Board are there to address any issues (Nothing specific, you’ll notice, such as the threat of disabled abuse that I warned them about).  As for the LGA Improvement Board, I’m still waiting for Michael Frater to get in touch and reassure me that he is actually doing anything at all about the imminent threat of disabled abuse.  So, lots of talk, no action.  All commitments to the need for “safeguarding” have been completely trashed by Wirral Council, the Information Commissioner’s Office, now followed closely by central government:

From: DoNotReply@dh.gsi.gov.uk [mailto:DoNotReply@dh.gsi.gov.uk]
Sent: 27 July 2012 12:24
To: [Mr P Cardin]
Subject: Response to your Query : – Ref:DE00000712327 – Reply to your email to Paul Burstow

Our ref: DE00000712327

Dear Mr Cardin,
 
Thank you for your correspondence of 5 July to Paul Burstow about adult social services in Wirral Council.  I have been asked to reply.

Safeguarding people in vulnerable situations from all forms of abuse is a key priority for this government.  The Department is aware of the issues you raise and the investigations which have taken place locally.  Paul Burstow met with the local MP Esther McVey to discuss this matter in March.

I understand that Wirral Council has taken a range of steps in response the report prepared by Anna Klonowski.  The Council has said that new safeguarding procedures have been devised and implemented that focus on partnership working and quality.

The internal Improvement Board established in response to the Klonowski report, with the support of the Local Government Association, will monitor progress against the council’s improvement plan.  The appointment of a social care challenge director has also raised the level of internal scrutiny and challenge.

Strengthened internal governance is bolstered by external challenge and scrutiny.  The agreed peer review of adult social care has now taken place.  Timing of the corporate governance review is still subject to active consideration by the council, and is likely to take place in September.

Paul Burstow will continue to take a close interest in progress at Wirral Council.  He is currently satisfied that progress is being made, and that the right mechanisms are in place both nationally and locally to ensure that this progress is maintained.

I hope this reply is helpful.

Yours sincerely,
 
Peter Wozniak
Ministerial Correspondence and Public Enquiries
Department of Health

UPDATE   31st July 2012

Email to Angela Eagle, MP for Wallasey, Wirral:

From: Paul C
Sent: 31 July 2012 00:41
To: ‘eaglea@parliament.uk’
Cc: ‘michaelfrater@wirral.gov.uk’; ‘m-thomas@audit-commission.gov.uk’; ‘grant.shapps@communities.gsi.gov.uk’
Subject: Threat of disabled abuse

Dear Angela Eagle,

There is an ongoing threat of disabled abuse developing in the North West of England, possibly on Wirral.  All the details are here on my blog:

http://wirralinittogether.wordpress.com/2012/05/20/departure-of-two-senior-officers-and-now-a-chief-executive-officer-from-wirral-council/

This situation was both foreseeable and avoidable, yet Wirral Council went ahead and did it anyway.  I have contacted Michael Frater, the LGA ‘troubleshooter’, who is yet to acknowledge the threat.  I have also contacted Mike Thomas, District Auditor, who is looking into it, but only from an auditor’s point of view.

I asked a question at 22nd June meeting of the LGA Improvement Board meeting, and made all the officials present aware of the danger.  The minutes have now been released for this meeting, but the details of my question are NOT recorded, which I find very frustrating:

http://www.wirral.gov.uk/downloads/4431

Contact has been made with Central Government in the shape of Grant Shapps and Paul Burstow.  Also Tim Kelsey, ex Cabinet Office transparency guru, who has since moved onto an NHS role.  None of these officials has been able to address the problem and Shapps and Burstow have passed me back to the jurisdiction of the Council, who cannot in my opinion be trusted to take the required action.

A freedom of information request was placed with Wirral Council back in January 2012, which was not acted upon until very recently (breaching the FOI Act).  The council are refusing to release the information and as you can see, the Information Commissioner’s Office are frankly useless:

http://www.whatdotheyknow.com/request/dass_recent_departure_of_two_sen

I would now like to call upon you to raise the issue of potential disabled abuse, due to the council’s failure to discipline its officers, in Parliament and sound the alarm bells for this on my behalf,

Yours sincerely,

Paul Cardin

UPDATE   1st August 2012

Email received from Michael Frater today:

Frater, Michael michaelfrater@wirral.gov.uk

13:59 (1 hour ago)

to grant.shapps, eaglea, me, m-thomas

Dear Mr Cardin

I write to advise you that the issue you raise is one of a number of what I term ‘unresolved issues from the past’ that I have arranged to discuss with the new Chief Executive and the Acting Director of Law next week.

Yours sincerely

Michael Frater

….Note: The new Chief Executive is Graham Burgess.  See following link to the Liverpool Daily Post:

http://www.liverpooldailypost.co.uk/liverpool-news/politics/politics-news/2012/07/20/the-big-interview-wirral-will-improve-i-promise-vows-new-chief-executive-graham-burgess-99623-31422641/

UPDATE   12th August 2012

As Wirral Council haven’t denied it, and the Information Commissioner has acknowledged that their identities are now in the public domain, it is safe to conclude that the two senior officers who were paid off with a very large and undeclared sum in public money, then allowed to depart Wirral Council under a compromise agreement and “gagging clause” the day before publication of the full Anna Klonowski report are:

Mike Fowler (Employee 13 in AKA Report)

Maura Noone (Employee 22 in AKA Report) (The Council in its reply corrected requester Pete Sheffield’s typo (Moira) , and helpfully gave the correct spelling)

Fowler is still looking for further work on the LinkedIn website.  But if he discloses to his employers any of the circumstances which led to his departure from Wirral (unlikely), this could be a breach of a gagging clause within his compromise agreement.  His former employer would then be free to take him to court to seek to recover a proportion of the public money that was paid to secure his departure.

16th August 2012 ~ Angela Eagle is yet to respond to my email of 31st July 2012 (see above), despite the compelling and urgent nature of its contents.


UPDATE   16th August 2012

Tim Kelsey, former Cabinet Office transparency guru and someone who initially appeared to display a keen interest in doing something about this has now decided to unfollow me on Twitter.  I’ll assume that threats of learning disabled abuse are no longer a priority, and something he no longer wishes to be updated on.

As for Wirral Tories, I think I can live with their decision, although their claim to be “listening to our communities” seems questionable.

UPDATE   27th August 2012

An exchange of tweets with Lib Dem care Minister Paul Burstow MP:

https://twitter.com/PaulBurstow/status/240113431590608897

Ironic & insulting: http://yfrog.com/odj87evj

UPDATE    24th August 2012

Angela Eagle has been in touch:

Letter to David Armstrong, Acting Chief Executive of Wirral Council:

Letter to Mike Smith, Chair of the Disability Committee of the Equalities and Human Rights Commission – most relevant letter with regard to the subject of Disability Discrimination:

(As of 14th November 2012, three months on, these letters have not been answered)

UPDATE   31st August 2012

Email received from Senior Case Officer at Information Commissioner’s Office:

From: <casework@ico.gsi.gov.uk>
Date: 30 August 2012 08:23
Subject: re your freedom of information complaint about Wirral Council[Ref. FS50438500]
To: Paul Cardin

PROTECT

30th August 2012

Case Reference Number FS50438500

Dear Mr Cardin

Thank you for your email. I have been waiting for a copy of the withheld information from Wirral Council. I received a response on 21 August 2012 and am therefore currently drafting a decision notice on your complaint.

I hope that this is helpful to you.

Yours sincerely

[Name removed]
Senior Case Officer

UPDATE   15th September 2012

Time drags on.  A couple of emails I’ve sent:

From: Paul C
Sent: 06 September 2012 00:09
To: ‘casework@ico.gsi.gov.uk’
Subject: Departure of two Senior Officers from Wirral Council FS50438500

FAO [name redacted]

Dear Mr [name redacted],

Please advise on progress with the Decision Notice you are drafting for this case.  It’s been well over two weeks since I received the email below,

Best regards,

Paul Cardin

From: Paul C
Sent: 15 September 2012 23:46
To: ‘casework@ico.gsi.gov.uk’
Subject: FW: Departure of two Senior Officers from Wirral Council FS50438500

FAO [name redacted]

Dear Mr [name redacted],

As requested over a week ago, but without response, please advise on the progress with the Decision Notice you are drafting for this case.  It’s been well over three weeks since I received the email below, which itself wasn’t sent until 9 days after you’d received notification from Wirral.  We’re now approaching the month mark.

Can I remind you that this is an urgent situation, where should either of the individuals, who weren’t disciplined, be re-employed elsewhere, vulnerable and disabled people may once again be put at risk?

To answer your original point, it has not been helpful at all, given the urgency, that you are not updating me and taking so long,

Regards,

Paul Cardin

Public servant and senior officer [name redacted]’s phone is switching to “answerphone” immediately, without ringing…. and has done for the last 2 days.

UPDATE   20th September 2012

Email received yesterday from ICO officer dealing with this:

PROTECT

19th September 2012

Case Reference Number FS50438500

Dear Mr Cardin

Thank you for your emails regarding your complaint about Wirral Council. I’m sorry I missed your call today.

As an update, I have just completed the draft of your decision notice today.  From this point the notice will go into a validation process which can sometimes take a number of weeks.  Notices can sometimes be issued faster than this however it is dependent upon the workload of the signatory, the complexity of the notice and whether the notice needs to go through a review by the Commissioner’s policy department.  It is therefore possible that the notice will be issued shortly however I am not able to specifically confirm that that will be the case.

I’m sorry that you have not received the notice earlier than this however decision notices are legal documents and therefore require careful thought and analysis. They can therefore take some time to complete as we need to be sure that we are fully aware of all the facts and that we apply the law carefully to those facts.

As regards the response to your earlier emails we try to respond to all requests for updates on complaints within 14 days.  I hope that this is helpful to you.

Yours sincerely

[Officer name redacted]

Senior Case Officer

UPDATE   11th October 2012

PROTECT

11th October 2012

Case Reference Number FS50438500

Dear Mr Cardin
 
I am writing concerning your freedom of information complaint about Wirral Council relating to a number of senior officers who left the council by mutual consent.  
 
As an update on your complaint, I have recently written to the council asking it to clarify one aspect of its arguments further. I am therefore waiting for a response from the council before the notice can be assigned to a signatory. 

I hope that this is helpful to you. 
 
Yours sincerely
 
[Officer name redacted]
Senior Case Officer

UPDATE   15th October 2012

PROTECT

15th October 2012

Case Reference Number FS50416628 and FS50438500 [THIS MATTER]

Dear Mr Cardin
 
Thank you for your emails. 
 
We confirm that based upon the evidence we have seen the council has complied with the decision notice.
 
As regards your question concerning FS50438500 [THIS MATTER], I wrote the council on 2 October 2012 and have asked for it to respond by 17 October 2012.  
 
I hope that this is helpful to you.
 
Yours sincerely
 
[Officer name redacted]
Senior Case Officer

28th October 2012

Nothing heard from Angela Eagle with regard to the two letters she kindly sent to David Armstrong and Mike Smith back in August (see the top of this blog post).  It’s now two months.  Where is the urgency?

I’ve sent the following email to her:

From: Paul C
Sent: 28 October 2012 00:42
To: ‘eaglea@parliament.uk’
Cc: ‘grahamburgess’; ‘Tour, Surjit’
Subject: Your letters to David Armstong (Wirral) and Mike Smith (EHRC) – Threat of disabled abuse

Dear Angela Eagle,

Threat of Disabled Abuse

Over two months ago, you wrote on my behalf to Interim CEO of the Council David Armstrong and also to Chair of Disabilities Committee of the Equality and Human Rights Commission Mike Smith.

I have not heard anything from you since then.  Presumably the two correspondents will have been in touch by now, and I would be very grateful to be updated on what they’ve said.  I’d appreciate it if you could check your records and see whether they’ve responded.  Whether they have or haven’t, can you get back to me with an update?

Internally at the Council, the new CEO Graham Burgess has officially made Monitoring Officer Surjit Tour the contact point for this important issue.  However, due to lack of any correspondence from Mr Tour over many weeks, I’m forming the strong impression that despite a clear and present danger of further disabled abuse, addressing this threat is not high on the list of priorities for this council,

Many thanks in advance,

Paul Cardin

BREAKING ~ 2nd November 2012

Wirral Council have finally confirmed the size of the pay offs to Mike Fowler and Maura Noone, who left the Council under gagging clauses, within compromise agreements in January 2012:

Good Morning,

With regard to your complaint with the ICO, please find below the
information the Council can disclose to you; this relates to the 2
payments made by the Council.

There was a total payment made in each case which was severance pay +
notice + 3 months pay.

Head of Support Services   Finance Department

109,496.45 which compromised:

74,276.52 (Severance)

16,881.93 (equivalent of 12 weeks notice)

18,338.00 (3 months salary)

Assistant Director, Head of Wellbeing DASS

111, 042.95 which compromosed

75,823.95 (Severance)

16,881 (equivalent of 12 weeks notice)

18,338 (3 months salary)

The Council remains of the opinion that other information requested is
exempt from disclosure under Section 40(2) of the FOIA as it contains
Personal Data.  The council considers that it would be unfair on the
individuals concerned to disclose this personal data and therefore would
be in breach of the 1st principle of the DPA 1998.

I have copied the ICO into this response.

Kind Regards

Jane Corrin

Information Manager

Wirral Council

UPDATE   14th November 2012

Latest email follow up to Angela Eagle, who, since she sent the above letters to Mike Smith of the EHRC (breaking news on him here) and Graham Burgess’ temporary predecessor David Armstrong at Wirral Council, has gone silent.

Dear Angela Eagle,

Threat of Disabled Abuse

Over two months ago, you wrote on my behalf to Interim CEO of the Council David Armstrong and also to Chair of Disabilities Committee of the Equality and Human Rights Commission Mike Smith.

I have not heard anything from you since then.  Presumably the two correspondents will have been in touch by now, and I would be very grateful to be updated on what they’ve said.  I’d appreciate it if you could check your records and see whether they’ve responded.  Whether they have or haven’t, can you get back to me with an update?

Internally at the Council, the new CEO Graham Burgess has officially made Monitoring Officer Surjit Tour the contact point for this important issue.  However, due to lack of any correspondence from Mr Tour over many weeks, I’m forming the strong impression that despite a clear and present danger of further disabled abuse, addressing this threat is not high on the list of priorities for this council,

Many thanks in advance,

Paul Cardin

As a reminder, here are the issues Angela Eagle raised in each letter which remain unanswered, months on….

Letter to David Armstong

  1. Whether the council intends to continue to redact information within the Klonowski report
  2. Whether there is a need for more transparency about what has taken place
  3. Whether you and your successor would advise me ‘regarding the issues raised by my constituent’

Letter to Mike Smith (EHRC)

  1. Any observations you may have to make on:
  • Vulnerable people remaining at risk
  • Discrimination towards vulnerable residents with disabilities
  • The potential threat of further abuse
  • Following my representations to the EHRC, the issue of disability discrimination being included in the [AKA] inquiry

23rd November 2012

Response in from the ICO regarding the ‘Departure of Two Senior Officers’ aspect – the original FoI request numbered FS50438500:

PROTECT

23rd November 2012

Case Reference Number FS50438500

Dear Mr Cardin
 
Thank you for your emails. 
 
The decision notice for case FS50438500 is currently awaiting allocation to a signatory [my annotation – the officer began drafting this decision notice in late August, almost 3 months ago]. As you know, after completing the first draft of the notice I went back to the council to check on the legal aspects of some of the arguments it had submitted. As a result the council has recently disclosed details of the severance payments made to the individuals to you. I am sorry for this delay however the notice needed to take into account the councils response regarding the requirements of The Accounts and Audit (England) Regulations 2011. 
 
As regards the councils response to decision notice FS50416628 [Register of Senior Officers Interests] I have been in correspondence with the council regarding the disclosures it has made and am currently considering its response. 
 
I hope that this is helpful to you. 
 
Yours sincerely

[Officer name redacted]
Senior Case Officer

UPDATE   6th December 2012

Email received from former Acting Chief Executive David Armstrong:

From: Lloyd, Tina A. On Behalf Of Armstrong, David
Sent: 06 December 2012 15:11
To: Paul C
Cc: Tour, Surjit; angela.eagle.mp@parliament.uk
Subject: RE: Disability Discrimination

Dear Mr Cardin

Thank you for your emails.

My understanding is that the new Chief Executive wrote to you in October advising that there would be a single point of contact with the council, Surjit Tour, the Acting Director of Law in order to provide a focused point of communication on the matters you are raising with the council.

Prior to ceasing to be the Acting Chief Executive on September 3rd and reverting to my base position in the Children and Young people’s Department I tried to deal with the outstanding matters from my period in the Acting Chief Executive post.  I can only advise you to raise outstanding matters with Surjit as requested by the Chief Executive.  I will also speak further with Surjit on this matter.

I felt that the new Chief Executive’s email was very clear re future contact.  If you felt it needed additional confirmation of the position from me and I did not provide that, then I apologise.

In respect of the matters raised, I feel that only Surjit can answer the question from yourself and Angela Eagle, MP re the redaction of some names in the AkA report,.  I was present when this matter was discussed at council and my recollection is that some changes were made to redacted material following consideration of the report.

In respect of your allegation re council staff, current or former being a threat to people with disabilities and represent a threat to their safety, Angela Eagle MP asked you to share the evidence you had with her and the Police.  In your reply of the 25th August you said you would need some time to gather evidence together.  I am not in a position to know whether this has happened but it does seem to be the logical next step in relation to the situation as you set it out in your emails.

[My comment: There may be gangsters involved – Currently, I do not feel in a position to jeopardise mine and my family’s personal safety by approaching the police]

I will discuss the matter further with Surjit Tour and am sharing this reply with him and Angela Eagle, MP.

Tina Lloyd on behalf of

David Armstrong

Deputy Director CYPD and

Assistant Chief Executive

Wirral Council

Visit our website: www.wirral.gov.uk

Site Meter