Is this ‘death by bureaucracy’? Exposing Disability Discrimination at Wirral Council

X ray photograph of person s hands on keyboard uid 1278716

Two years ago, back in 2010, I approached my MP, Angela Eagle, with concerns that there had been systematic disability discrimination at Wirral Council.  She contacted the Equality and Human Rights Commission in order to pass on these concerns.  In December of that year, she received the following letter in response:

As is spelled out clearly in the letter, Mike Smith found that there had been Disability Discrimination committed by Wirral Council.  This discrimination was financial and it had occurred for a period of up to 9 years, despite whistleblower Martin Morton informing his seniors early on that it was going on and that it was wrongIn return for his good faith, public-spirited actions, he was bullied, mobbed and forced from his job.

In the West Wirral case, there were 16 learning disabled residents affected whom, over the period in question, had approximately £500,000 (later confirmed as £736,000) deliberately and unlawfully taken directly from their bank accounts.  When referring to these issues, the council, the media and various “watchdogs” consistently use the word “overcharging”.  However this word is inappropriate, unhelpful and simply keys in with the desire by those still in power to minimise, deflect and dilute the seriousness of what happened.

Following the exposure of this discrimination, the council put in place a “retrospective charging policy” (in itself legally dubious) which was supposed to ensure that the affected tenants, five of whom have since died (their estates), would receive a proportionate shared ‘reimbursement’ of £243,000.  Here is the original FoI request asking for a copy of the form that was sent to tenants for them to claim back the unlawfully deducted sums.  However the alarm was quickly raised that these sums were to be treated as “windfalls” by the Department for Work & Pensions, and would adversely impact on tenants’ existing benefits.

It’s now uncertain how much of this money has in fact been reclaimed or whether the tenants were made to suffer twice through no fault of their own.  I’m currently planning to contact LGA troubleshooter Michael Frater and / or Wirral’s new CEO Graham Burgess in order to discover the actual amount reclaimed.  If this isn’t successful, I’ll make another FoI request through the website.

Wirral Council’s Director of Law, Bill Norman, mentioned in the above letter – and since suspended from his job, before departing the organisation with a large pay off – believed that there had not been any disability discrimination.  He’s since left Wirral and taken up a senior post at Herefordshire Council:

…but Mike Smith disagreed with Wirral’s (now former) Director of Law, and requested that the issue be passed to Anna Klonowski Associates – the external investigator who had been commissioned to carry out an independent enquiry by one time council leader Jeff Green.  AKA in turn, commissioned a large law firm, DLA Piper UK LLP, to carry out the disability discrimination element of her investigations.  The full version of the Klonowski report was published in early January 2012.  It found that there was no disability discrimination.  Link to section on disability discrimination here:

AKA Discrimination issues

However, this issue is not dead, because the opinion of Mike Smith of the EHRC cannot be written off or sidelined in this way.  This sort of question is a regular consideration for him, is straightforward in this case, and does not allow for motive and intent.  He stated quite categorically that disabled people had been overcharged (and therefore had been discriminated against).

I believe on a clear reading of the above letter that Mr Smith established there was disability discrimination and went on to recommend that it was passed to the AKA enquiry to enable them to:

A. Assess how far it extended

B. Assess the impact it may have had

C. Assess how it could be addressed

But DLA Piper UK LLP somehow got hold of the wrong end of the stick, were badly instructed or completely misunderstood the contents of the Mike Smith EHRC letter, opting instead to pass a judgment on the “existence or otherwise” of disability discrimination, rather than establishing the true extent of proven discrimination, rooting it out and dealing with it.

The fact that Director of Law Bill Norman, who with then CEO Jim Wilkie visited the offices of the EHRC on 13th July 2011, was later suspended from his role casts further doubt upon the safety of the DLA Piper conclusion of “no disability discrimination”.

Councillor Simon Mountney had attempted to present copies of the above EHRC letter for consideration by the Council’s Health and Wellbeing Overview and Scrutiny Committee when it sat on 18th January 2011.  However this was blocked by the chair, Moira McLaughlin for the reason that she hadn’t been advised about it before the start of the meeting.  Upon taking advice from a solicitor seated next to her, and reading the contents of the letter, she was heard to say to the room in general, “You don’t believe everything you read in the newspapers  do you?”  This was a reference to the following news article, which had appeared in The Wirral Globe that week:

I am hopeful that since the LGA have set up an “Improvement Board”, which is reportedly aiming to discover where it all went wrong, and to turn around the performance of this failed council, there may be a chance to:

A. Re-establish and re-invigorate Mike Smith’s original finding of disability discrimination

B. Dispense with the bizarre DLA Piper UK conclusion

C. Progress towards making the real perpetrators accountable

I made a serious and comprehensive standards complaint against Councillor Moira McLaughlin some time ago, but by the time these issues came up for consideration, she had become Mayor and the complaint was unsuccessful.  Here is a copy of the decision:

The now suspended Director of Law, Bill Norman played a leading role in this failed complaint.  Since his status and former position has come under question, I will consider applying to resubmit this complaint.  There is currently an anticipation of a number of separate serious charges being brought against him (now departed from the council) and his suspended colleagues, Ian Coleman (now departed from the council), David Taylor-Smith and David Green (reinstated with ‘no case to answer’ – but curiously quiet – has now departed, receiving £143,000).  This will be in response to their potential involvement in massive failings in corporate governance, accompanied by huge losses of public revenue.

I placed an FoI request with Wirral Council in February 2012 asking for copies of all correspondence between DLA Piper UK LLP and Wirral Council, but it’s followed an identical path to that of numerous other requests, and has been added to a lengthening list of requests that are quite simply not being addressed or acknowledged.  These now have an average response time of over 6 months:

***UPDATE – 10th November 2013***

The ICO found AGAINST the council, ordering them to provide the information, but they have appealed to the First Tier Tribunal

Here is a link to an associated Freedom of Information request made to Wirral Council, regarding law firm DLA Piper, which requests 8 separate and relevant pieces of information, but which has also run long overdue:

The man previously in charge of Freedom of Information at Wirral Council is the now departed Acting Chief Executive Ian Coleman.

UPDATE   2nd August 2012

I recently sent an email to Wirral’s Director of Adult Social Services Graham Hodkinson to request figures for how many of the financially abused tenants of the three Moreton Supported Living establishments had received what was termed “reimbursement”.  Originally, approximately £500,000 was unlawfully taken, however only about half of this was returned due to the imposition of what many people regarded as a legally dubious “retrospective charging policy”.

Here are the figures, supplied this afternoon.  At this stage, it’s uncertain whether the tenants were ‘clobbered’ again by having their benefits reduced due to receipt of a so-called “windfall” (most people would regard this as outrageous, as the money was taken unlawfully in the first place – and why on earth should people be made to suffer twice through no fault of their own?)

I’ve thanked Mr Hodkinson’s staff for providing this information, and have asked for further information to clarify whether the recipients’ benefits were adversely affected.  I’ve been told that the information is held, and it is being prepared for publication in a report to the Health and Wellbeing Overview and Scrutiny Committee in September, which will be made accessible on the Council website.

UPDATE   24th August 2012

Angela Eagle has been in touch today by letter:

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:

In addition to the above ongoing threat of abuse, caused by the council’s concealment of identities within the AKA report, and its reluctance to discipline its own officers, in his letter dated 29th December 2010 (see above), Mike Smith of the Equality and Human Rights Commission asserted that there had been disability discrimination committed by Wirral Council when for a period of many years they unlawfully debited sums from the bank accounts of 16 tenants living in supported accommodation in Moreton, Wirral.

This conclusion was in my opinion inescapable.  Mr Smith then asked Anna Klonowski Associates to “identify whether there are other issues or systemic problems that need to be addressed.”

However, for whatever reason, Anna Klonowski may have been forgetful, negligent or may have instructed DLA Piper Solicitors incorrectly.  How is this even possible, given the subject matter?  They appear to have addressed this matter with entirely the wrong purpose; that of finessing a position where Mike Smith’s verdict of disability discrimination could be refuted – which ultimately, it was.

Within the AKA Report, DLA Piper Solicitors duly arrived at the opposite conclusion to Mike Smith.  Wirral Council have now breached Statutory Law in not responding to give a reason why they are not supplying copies of the correspondence that passed between DLA Piper Solicitors and themselves.

I am now hopeful that Mr Smith will re-read his original letter to Angela Eagle MP, and digest the relevant appendix to the AKA report, along with compelling evidence I am planning to supply, before reasserting his original finding – that there was disability discrimination committed by Wirral Council – and not just in Angela Eagle’s constituency.  It also occurred in a number of other Wirral Supported Living establishments.

I still await Wirral Council’s response to the DLA Piper freedom of information request, which was lodged back on 4th February 2012:

In it, I requested copies of all correspondence between Wirral Council and DLA Piper UK LLP Solicitors, but the Council have been dragging their feet for an awfully long time now.  I have been forced to appeal to the Information Commissioner’s Office once again.  I do wish the penny would drop, and Wirral Council would realise that their blanket refusals are only putting off the inevitable.

Smearing 10 members of the Wirral public in order to mask your own poor performance (which the council have now done in this report) won’t wash with the ICO.

UPDATE   30th August 2012

Email trail forwarded to Joyce Redfearn, chair of Wirral Council’s ‘Improvement Board’.  She passed this on in turn to the Acting Chief Executive at the time, David Armstrong – who failed to respond

From: Joyce Redfearn

Sent: 30 August 2012 15:07

To: Paul C

Cc: David Armstrong; Graham Burgess

Subject: Re: Disability Discrimination
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

On 27 Aug 2012, at 22:20, Paul C wrote:
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 Equalities 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

From: Paul C

Sent: 23 August 2012 14:26

To: ‘’

Cc: ‘’; ‘Green, Jeff E. (Councillor)’; ‘phildavies’; ‘’

Subject: FW: Disability Discrimination
Dear Mr Frater,
We are approaching a month since I sent the email below, but I haven’t received a response.
When you have the opportunity, I would very much appreciate an acknowledgment and response,
Many thanks,
Paul Cardin

From: Paul C

Sent: 26 July 2012 23:36

To: ‘’ Cc: ‘Anna Klonowski’; ‘’; ‘Green, Jeff E. (Councillor)’; ‘phildavies’ 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

<<<<<<<<<<18th November 2012 Annotation: David Armstrong has NEVER responded, to this or any other email I’ve sent with the subject line “Disability Discrimination>>>>>>>>>

UPDATE   25th September 2012

This afternoon, I rang The Information Commissioner’s Office for an update on the above freedom of information request.  I was told that the case was escalated in July 2012, but the team dealing with such cases are currently dealing with those escalated in May 2012.

So, given this rate of progress, in another two months’ time, my case will be dealt with.  Not exactly heartening is it, given the subject matter?

I will ring the senior ICO manager in an attempt to get him to promote it and have it dealt with quicker.  This is unaddressed disability discrimination after all.

UPDATE    26th September 2012

Email to Complaints manager, Information Commissioner’s Office

Case FS50445302
FAO [Manager’s name redacted]
Dear [Manager’s name redacted],
I spoke with your colleague [investigating officer name redacted] yesterday regarding this case.  It is another one in which Wirral Council, through unexplained delays, appear to have breached Statutory Law.
The case relates directly to disability discrimination and to the finding of Mike Smith of the Equality and Human Rights Commission that the Council discriminated against at least 16 learning disabled people across an 11 year period, the result of which was £700,000 plus being unlawfully debited from their bank accounts in charges.  This finding was reached in early 2011.
The independent Anna Klonowski reported in January of this year, finding that there was no disability discrimination – however, in my opinion, it was not within the remit of the law firm DLA Piper UK LLP, the firm assigned to this area of work, to arrive at this conclusion.  I complained to my own MP, Angela Eagle originally in late 2010 about disability discrimination and I am hoping to have Mike Smith’s finding verified in order that the council can be made legally liable to recompense the recipients of what was calculated discrimination.
I am aware that the ICO complaints department is extremely busy and under-resourced, but in order to bring a decision about as soon as possible, expediency in aiming to access the important correspondence between the council and the law firm is crucial, and I would be very grateful if you could use your power as complaints manager to advance the case and have it dealt with more quickly.
If you need to discuss this issue my mobile phone contact number is [contact number redacted]
yours sincerely,
Paul Cardin
UPDATE   4th October 2012
Good news.  I’ve had an email from a senior case officer at the ICO:


 4 October 2012

 Case Reference Number FS50445302

 Dear Mr Cardin

Further to our letter of 9 July 2012, I write to inform you that your case has now been allocated to me to investigate and to inform you of how I intend to resolve the matter.

It is clear that Wirral Metropolitan Borough Council have failed to provide a response to your request despite the ICO’s intervention in June 2012. I therefore intend to issue a decision notice requiring Wirral Metropolitan Borough Council to provide you with an adequate response in accordance with the Freedom of Information Act 2000.

I hope to issue the decision notice within the next 2 weeks. 

I trust this is satisfactory.

Yours sincerely

[Name redacted]
Senior Case Officer

It’s not the required outcome, at least not yet…. but it’s another Decision Notice (which is a legal document) to add to the ever-growing pile.  This is likely to shine the spotlight onto Wirral Council’s methods, and is potentially another nail in the coffin of the disability discrimination, perpetrated for over a decade by this council.
UPDATE 10th October 2012
The decision notice FS50445302 was received today and is reproduced below:

This Decision Notice is now up on the ICO website, and can be linked to here:

I noticed today that Wirral has received 18 Decision Notices so far.  For comparison purposes, Birmingham City Council – the largest UK Local Authority – has received only 10.  Kent County Council, another biggie, has received only 6.  This would seem to indicate Wirral are getting something wrong.

Another telling area is that of “complaints”.  An appeal can form 1 complaint, or if more complex be broken down into a number of separate ones.  Wirral’s 18 Decision notices make up a total of 38 complaints.  36 of these have been upheld or partially upheld on behalf of the complainant.
Turning to the subject matter, once again Wirral haven’t responded since February this year, and are in breach of Statutory Law, having failed to meet their obligations under the Act.
I suspect they will eventually plead legal privilege on this. (Did you know that data controllers are allowed to change their reasoning for withholding information as the process pans out?  That’s right.  If the first, second or third excuse doesn’t fit the bill, let’s try a fourth)….. is it any wonder the process can become SO painful and drawn out for requesters?  The chances are Wirral will soon end up back under the Information Commissioner’s own particular version of  ‘special measures’, having learned nothing since the last time this happened.
They now have until 14th November 2012 to provide the information or issue a valid refusal notice under Section 17(1).
UPDATE   14th November 2012
Nothing in yet.  Tomorrow, I’ll pick this up again and take it on to the next stage with the ICO.
UPDATE   9th November 2012
the following link contains some rather disturbing news about the Disability Committee of the Equality and Human Rights Commission, and Mike Smith’s future as chair:
UPDATE   18th November 2012
Second emailed reminder sent this morning to David Armstrong, former Interim Chief Executive.  He was contacted in August on my behalf by Angela Eagle MP, but has never responded:
From: Paul C

Sent: 18 November 2012 09:54
To: ‘’
Cc: ‘’; ‘’; ‘’; ‘Tour, Surjit’
Subject: RE: Disability Discrimination

Dear Mr Armstrong,

Have you responded yet to my local MP’s urgent letter, dated 23rd August 2012, sent to you months ago?

This ongoing lack of response doesn’t bode well and is not in keeping with your role / responsibilities as a senior public servant.  Please check again the subject matter of this email.  Wirral Metropolitan Borough Council are entrusted with important obligations where the welfare of vulnerable and disabled people are concerned.  However, all the evidence taken together seems to point to them being near the ‘bottom of the pile’ where the council’s priorities are concerned.

I look forward to hearing from you this coming week,

Best regards,

Paul Cardin

From: Paul C
Sent: 22 September 2012 23:25
To: ‘’
Cc: ‘’; ‘’; ‘’
Subject: Disability Discrimination

Dear Mr Armstrong,

I still await some acknowledgment or response to the issue that was raised with you recently in a letter from Angela Eagle and also in an email from Joyce Redfearn (both attached).  If the matter has been passed onto somebody else, please advise who,

best regards,

Paul Cardin

UPDATE   19th November 2012
Email in today from the ICO:


19 November 2012

Case Reference Number FS50445302

Dear Mr Cardin

I am writing in response to your email of 15.11.12.

I have called the council today to enquire why it has not yet complied with the decision notice dated 16.10.12. This will be looked into by the council and it will get back to me later today or tomorrow.

The Commissioner has discretion as to how to deal with public authorities who have not complied with a decision notice and whether to deal with such a failure as contempt of court pursuant to section 54 of the FOIA. Once I have heard back from the council I will contact you again to inform you how ICO intends to deal with this matter.

Yours sincerely
[officer name redacted]
Senior Case Officer

This refers to the FoI request FS50445302 (asking for correspondence between Wirral Council and solicitors’ firm DLA Piper.  This one is now 9 months old and the process of extracting responses and answers has become slow and painful.

Recently, the Council finally did come up with a Section 41 Exemption (Protecting the confidentiality of information belonging to a ‘person’ (DLA Piper)).
However, I believe this exemption to be inappropriate and unsatisfactory – and also not engaged as regards correspondence which the Council has generated (which is simply not covered by a Section 41 exemption).
The Council’s attempt to engage Section 41 is detailed here:

Link to this

My response (sent over the WhatDoTheyKnow website)was as follows:

From: Paul Cardin

23 November 2012

Dear Lyon, Rosemary A.,

Firstly, please provide all correspondence generated by yourself
(under the terms of the original request).

I don’t believe the information that the council generated with
regard to this can be covered by a Section 41 Exemption. Having
already travelled as far as the Information Commissioner’s Office
and received a legal document in the form of a ‘Decision Notice’
instructing you to act, I look forward to receiving this forthwith,
without any need to internally review or put any further obstacles
in the way (I don’t think the FOI Act permits an internal review
AFTER a decision notice has been sent.)

Secondly, as for the information generated by DLA Piper UK LLP, I
believe there is an overriding public interest attached to the
release of the information.

• Wirral Council has a statutory duty to protect its vulnerable
people – for the good of society. It has quite deliberately failed
in this through unlawfully taking at least £700,000 from the bank
accounts of many disabled Wirral people over a period of many
years. When informed in great detail about this internally by
Martin Morton, the council failed to stop it, bullied him out of
his job, and carried on doing it – see the findings of the Martin
Smith and Anna Klonowski Independent reports. The Equalities and
Human Rights Commission found that this amounted to disability
discrimination – the very subject matter of this request

• As a result of this disability discrimination, vulnerable members
of the public have had their wellbeing adversely affected. Flowing
directly from this, their ability to defend themselves against the
threat of abuse has been severely diminished, because their
confidence in their statutory protector – the local council (who
now deny them access to information) – has been so badly damaged.
The council itself has been forced to admit to abuse of learning
disabled tenants

• Despite this admission, there has been no reckoning or
accountability yet for any of the councillors or senior public
servants directly involved in these scandals – indeed currently,
there is a drive (originating with the Council’s legal head) to
keep the names within the investigation reports hidden. The public
are still waiting for ‘right to be done’ – for the good of society.
But whilst they wait, there have been pay offs and there have been
gagging clauses, used to stop former employees talking, concealed
within compromise agreements. And there have been six figure sums
paid to silence people who were found by independent investigations
to have been connected to abusive behaviour towards vulnerable and
disabled members of society

• Given the history of failed governance, which has also spread
into other council departments, vulnerable people and their carers
now need to be able to seek redress and rebuild their confidence in
the body which is entrusted with looking out for their welfare.
They can do this by gaining access to information and to areas that
appear to have been deliberately closed off through confidentiality
– the written exchanges between the council and the law firms whose
services are continuing to be purchased with large amounts of
public money. Confidentiality is a factor; I don’t deny this; but I
believe it is dwarfed by the urgent need for transparency, for the
legitimate and compelling public interest to be satisfied, and
ultimately for the good of society

• I don’t believe in this case that confidentiality can be a
justified obstacle to openness and transparency and the good of
society. There are now some very compelling questions that need to
be asked of the law firm DLA Piper. Such as, how they arrived at a
finding that there was no disability discrimination? How did the
EHRC suggestion that disability discrimination, once confirmed, and
investigated to see where it occurred, and how far it spread –
become completely subverted – and changed to a remit which failed
to acknowledge and recognise the EHRC finding, and looked simply
for whether disability discrimination had occurred or not – only to
find that it “hadn’t occurred”?

• On Wirral, where so much suffering has been caused over such a
long period of time (10 years plus). I don’t believe that grave
matters such as systematic abuse and disability discrimination, and
the correspondence surrounding this, can be blocked through a
Section 41 exemption on the grounds of ‘confidentiality’. The good
of society is paramount and needs to be served in this case

I will be contacting the Information Commissioner’s Office for
further advice,

Yours sincerely,

Paul Cardin

UPDATE   25th November 2012

Updating email sent to the ICO this morning:

From: Paul C []
Sent: 25 November 2012 07:30
To: ‘’
Subject: FW: Response to email of 15.11.12[Ref. FS50445302]

Dear Deborah Clark,

Thank you for your email of 19th November 2012.

On 22nd November 2012 I received a response from Rosemary Lyon, a solicitor at Wirral Council, who informed me that the council was relying upon a Section 41 Exemption within the FOIA.  Whilst I regard Confidentiality as an important factor, given the circumstances, I do not accept this as adequate justification to continue withholding the information in this case.

In accordance with ICO Awareness Guidance 2, I also believe Wirral Council is incorrect in applying Section 41 to information generated by the council itself.


“The exemption does not cover information which the public authority has generated itself, although it may cover documents (or parts of documents) generated by the public authority if these contain confidential information provided by a third party.”

The ICO Advice note clearly disallows the blanket withholding of this information.  Section 41 is therefore not engaged with regard to the majority of the content of this correspondence.  I would now like you to enforce my subsequent request and require Wirral Council to publicly disclose their own generated correspondence in accordance with ICO Awareness Guidance 2.

As for the correspondence generated by DLA Piper, I have advised Wirral Council that I am not happy with their response and that I plan to return to the ICO for advice.  I have set out my reasoning in a reply which is reproduced on the WhatDoTheyKnow website at the following link.  This reasoning is also provided to the ICO in order to help you further my case for disclosure:

In light of the ongoing controversy surrounding two independent investigations which found bullying; abuse of power; abuse of disabled people; serious failures in corporate governance, but no accountability for those involved – followed by the subsequent attempted suppression of information, my justification for disclosure of this correspondence is set out in the terms:

“The need for Confidentiality v The Public Good”.

Disability discrimination by Wirral Council (who have a statutory obligation to protect the welfare of disabled people) was originally found by Mike Smith, Chair of the Disabilities Committee of the Equalities and Human Rights Commission in December 2010, and has been taken up on my behalf by my representative in Parliament, Angela Eagle MP.

I look forward to receiving your advice on this matter in the near future,

Best regards,

Paul Cardin

UPDATE   26th November 2012

An answer has arrived and its not good news!  This looks like ‘back to square one’.  Is this what’s known as death by bureaucracy?


26 November 2012

Case Reference Number FS50445302

Dear Mr Cardin

Further to your email of 25 November 2012, as the council has now responded to your request but applied an exemption to withhold the information, a new case will be set up to deal with the complaint and you will be contacted by our First Contact department in due course.

Yours sincerely

[Officer name redacted]
Senior Case Officer

I recently received a response from James Baldwin, who appears to be Angela Eagle’s parliamentary assistant.  He sent me a letter he’d received that day from Vivienne Stone of the Equality and Human Rights Commission.

Here is the letter:

29 11 12 - Vivienne Stone EHRC page 129 11 12 - Vivienne Stone EHRC page 2

29 11 12 - Vivienne Stone EHRC page 3

What’s really perplexing about this letter is in the underlined section above, Vivienne Stone appears to be denying the contents of Mike Smith’s original letter, sent in late December 2010 (see the top of this post).  Mike Smith’s letter never advised Wirral to appoint anybody to ‘look for disability discrimination’.  It had already been found.  We also can’t satisfy ourselves on what transpired between Sheila Kumar, Jim Wilkie and Bill Norman on 13th July 2011.  Are there any minutes for this meeting?  Was Mike Smith’s opinion ignored or overriden?

There is no absence of detailed information – because Mike Smith received enough information in 2010 to confirm that there had been years of disability discrimination towards learning disabled Supported Living tenants.

It was then a case of Anna Klonowski going away, investigating and seeing how this had impacted and how far it extended.

Chief Executive Jim Wilkie was later forced to leave the council.  Bill Norman was later suspended, along with three of his colleagues and, although ultimately he had ‘no case to answer’, I believe that from this point, his historical opinion that there was ‘no disability discrimination’ became tarnished.

It is time to reaffirm Mike Smith’s original findings,  and act upon over a decade of disability discrimination, carried out by Wirral Council, a body which has a statutory obligation to protect the welfare and interests of its own disabled people.

UPDATE   6th December 2012

David Armstrong replied today to the letter that Angela Eagle sent him on my behalf back in August.  Remember August?  No, thought not.

My comments are in black.

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.  (But did the new Chief Executive write to Angela Eagle, to acknowledge the original letter? If not, why not?)

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.  (Why didn’t you advise both Angela Eagle and me of this course of action back in August?) 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. (Thank you.)

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. (Surjit Tour has not made any attempt to answer this point.  It is preventing those complicit in abuse / disability discrimination from being identified.  Do I have to send all my emails again or being met with a wall of silence, somehow fathom their whereabouts and exactly whose in-tray they may be sitting in?)

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. (It has happened.  I am waiting for Angela Eagle to respond and have been since September.  So much for ‘urgency’.)

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

UPDATE   13th January 2012

Reminder to the ICO:

From: Paul C []
Sent: 13 January 2013 22:52
To: ‘’
Subject: RE: Application of exemption[Ref. FS50445302]

Dear [Senior officer name redacted],

I have not been contacted in a very long time by your ‘First Contact Department’.

Please can you re-acquaint yourself with the issues and respond, with advice on what is happening?

Many thanks,

Paul Cardin

UPDATE   14th February 2013

I received a response from Anne Quirk, a solicitor at Wirral Council today.  She has applied a Section 41 exemption (information sent in confidence – Rosemary Lyon applied one of these to the same request last November, making two in total) and for good measure, a Section 42 exemption (Legal privilege) on top of that.

My response is here and it’s not to Wirral – I may as well give up with them.  It’s a SECOND appeal to the ICO:

From: Paul C
Sent: 14 February 2013 23:04
To: ‘’
Subject: Appeal: re Wirral Borough Council – Decision Notice FS50445302 (Senior Officer name redacted)

Dear ICO,

Wirral Council has delayed for an extremely LONG time on this FoI request, lodged in early February of 2012 – it is another request with a highly controversial background.  Here is a link to the original request:

The subject matter is Disability Discrimination, carried out by Wirral Council and confirmed by Mike Smith, former chair of the Disabilities Committee of the Equalities and Human Rights Commission in a letter written in December 2010 (attached).  All details, letters and background information, etc. are held at the following link, which will need to be consulted in close detail:

You have already issued a Decision Notice. FS50445302 in October 2013 which upheld my complaint and found that the council needed to either respond to the request or issue a valid refusal notice.  The council has now responded.  Just over a year since the request was originally lodged, and I am appealing against its decision.

Please find my complaint form attached.  Within the EMAIL1 and EMAIL2 attachments, you will find my arguments as to why the council’s claimed S41 Exemption does not apply.  As for S42, I believe “The Good of Society” and the serious nature of the same compelling issues outlined in EMAIL1 and EMAIL2 (attached), mean that the public interest in disclosing this information outweighs the interest in maintaining the legal professional privilege that exists between client and solicitor,

Kind regards,

Paul Cardin

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About Wirral In It Together

Campaigner for open government. Wants senior public servants to be honest and courageous. It IS possible!
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