Disability Discrimination and Confidentiality – The ICO challenges Wirral Council’s appeal

16th January 2014

Here’s an FoI request I placed back on 4th February 2012:

https://www.whatdotheyknow.com/request/request_for_copies_of_correspond_2#incoming-360403

It’s getting on for ‘ancient history’ now, but this is Wirral Council remember –

  • Two ICO monitoring periods;
  • CEO having to sign an undertaking;
  • Evasive, lumbering and slow to respond;
  • A long way from “improved”;
  • Despite liberal helpings of LGA gloss, still thrashing about in a quagmire of its own creation…

To add some context, the correspondence that’s been requested between Wirral Council and law firm DLA Piper could be absolutely crucial to this case.

Within these exchanges, there is a chance that evidence exists to explain how and why this law firm overturned a December 2010 decision by Mike Smith, Chair of the Disabilities Committee of the Equalities and Human Rights Commission, that Wirral Council had unfairly discriminated against disabled people.  This was when it spent 9 abusive years deducting £736,000 from the bank accounts of at least 16, but an unspecified greater number of learning disabled tenants of supported living accommodation in Wirral (a big part of the Martin Morton whistleblow).

So, keen to keep the shutters slammed down, and never shy of donning the armour, to embark upon hideously misconceived legal crusades, Wirral Council will be digging deep into OUR pockets, and lashing out more of OUR public money by taking the issue all the way up to the First Tier Information Tribunal.

And as all Wirral Council Tax payers know to their cost, bringing these appeals doesn’t come cheap.

If there’s one positive aspect, it’s that the appellant, Wirral Council, has asked for the case to be judged ‘on the papers’ – which means there won’t be an expensive London based oral hearing.

But back to the history of this.   In the 23 months that have ground by with glacial speed, while we’ve waited for this council to get its act together, here’s what’s happened:

  • February 2012 – request lodged
  • March 2012 – no answer.  Internal review requested.  Receipt acknowledged
  • May 2012 – internal review not carried out.  I prompt them
  • June 2012 to September 2012 – my messages to Wirral are ignored, I lodge an ICO appeal, but I hear nothing until…
  • October 2012 – the ICO issue a Decision Notice against the council, asking them to respond or issue a valid refusal notice
  • November 2012 – the council finally responds, claiming a Section 41 exemption (confidentiality).  I send a further request by email direct to the council (see below), which is ignored
  • February 2013 – the anniversary of the original request; Council also pleads Section 42 exemption (legal professional privilege)
  • July 2013 – my appeal is allocated to an ICO case officer – so far, it’s taken 17 months
  • October 2013 – a second decision notice is issued by the ICO, ordering the council to disclose the requested information
  • January 2014 – ICO solicitor writes, informing me that Wirral are appealing against the ICO decision
  • January 2014 – the ICO lodges with the tribunal its response to Wirral Council’s grounds for appeal.

<<<FOLLOWING WAS NOT SENT>>

Dear Wirral Council,

Firstly, please provide all correspondence generated by yourself (under the terms of the original request).  This information is not 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

Email to Michael Frater in July 2012, when he was supposed to be sorting the place out….


From: “Paul C”

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

To: <michaelfrater@wirral.gov.uk>

Cc: ‘Anna Klonowski'<anna@akalimited.co.uk>; <grahamburgess@wirral.gov.uk>; ‘Green, Jeff E. \(Councillor\)'<jeffgreen@wirral.gov.uk>; <phildavies@wirral.gov.uk>

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

Response from Michael Frater?

None.

Response from Anna Klonowski…………..

From: Anna Klonowski
Sent: 27 July 2012 08:58
To: Paul C; michaelfrater@wirral.gov.uk
Cc: grahamburgess@wirral.gov.uk; ‘Green, Jeff E. (Councillor)’; Phil Davies; joyceredfearn
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

In other words, ‘fire and forget’.  Anna Klonowski, during her time ‘helping us’ on Wirral, pocketed £370,000+

More to follow soon…

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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One Response to Disability Discrimination and Confidentiality – The ICO challenges Wirral Council’s appeal

  1. Pingback: UK Labour’s Tories are Running Away From Their Own Proven Human Rights Abuses, and Worse… | Wirral In It Together

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