I recently submitted a SAR to the Council.
My request has been refused on the grounds that it is deemed to be MANIFESTLY UNFOUNDED.
The email from the Council is reproduced below
The supporting evidence provided by the Council is reproduced below
The ICO explanation of the meaning of MANIFESTLY UNFOUNDED is reproduced below
I will add to this blog very soon to reply to the Council
Watch this space
This report was issued by the Wales Audit Office in August 2019
I would draw your attention to Paragraph 12 (see below) which refers to the WAO Report into Whistleblowing Arrangements relating to Safeguarding incident in 2016.
A huge understatement
‘the lack of appropriate record keeping at that time (Feb2016) undermined the the Council’s ability to justify some of the decisions taken’.
What were those decisions?
1 Refusal of Chair of Governors of Ynysowen Primary school to accept advice from the LA HR Officer regarding the allegation against the Head Teacher of inappropriate handling of one of her pupils.
2 Decision of the Chair of Governors to not have an independent investigation of the allegation against the Head.
The reason she gave, under oath as a witness at the HR Officer’s Employment Tribunal, was that she knew the Head personally and as a result knew that she would never ever harm a pupil intentionally or unintentionally.
3 Decision of Chair of Governors and Lead Safeguarding Officer that the allegation was unfounded.
No record exists of the reasons why these two individuals considered that the allegation was unfounded.
Further details of these matters are available in another of my blogs dealing with the failures of the LA to ensure proper Safeguarding procedures were followed.
1st Email response from Huw Rees WAO
Dear Mr Jones
Thank you for your further correspondence. Please note that there is no legal requirement for the Auditor General to undertake audit work in respect of correspondence he receives, and neither the Auditor General nor the Wales Audit Office have a statutory duty to investigate complaints against bodies that the Auditor General audits.
In deciding whether to look into issues raised in correspondence we take into account a number of factors. These include whether:
The WAO report to which you refer focused on the concerns raised about the application of Merthyr Tydfil County Borough Council’s whistleblowing and safeguarding policies and procedures in relation to events which took place at a school in 2016 .
Given that the scope of our work related to the Council’s arrangements, I am satisfied that we have reviewed the relevant information in relation to those arrangements sufficiently to report.
We do not have the remit to question the outcome of the employment tribunal.
In this instance, and given that we have already undertaken work on this matter, I do not feel that it would be a proportionate use of audit resources to investigate further and as mentioned, we do not have the statutory powers to examine the outcome of the employment tribunal. I recognise that you may be disappointed with this.
We have been undertaking a range of work at Merthyr Tydfil County Borough Council and have recently published a number of reports, which are available on our website. You may also be aware that the Minister for Housing and Local Government has recently published a written statement relating to the Council together with a report following an independent assessment carried out by an external advisor.
Kind regards,
Huw Rees
Director
On behalf of the Wales Audit Office
Thank you for your response.
I would make a number of observations:
I do not expect WAO to question the outcome of the employment tribunal.
I do not expect WAO to examine the outcome of the employment tribunal.
I am not disappointed about this.
In fact, the outcome of the employment tribunal has nothing whatsoever to do with this matter.
I don’t really understand why the Auditor referred to it in the report and then commented that my son’s claims for unfair dismissal were unsuccessful.
When the Auditor and a colleague met with my son, I was present.
The Auditor was told of the Judge’s summing up comments and also referred to the Tribunal Judgement report where the judge stated that my sons claims for dismissal related to Disability Discrimination and Public Interest Disclosure were unsuccessful due to lack of sufficient evidence.
The Judge went on to say that if my son had claimed ordinary unfair dismissal then his claim would have been successful.
Yet the Auditor did not choose to include this detail in the report.
What is to do with this matter is what the employment tribunal judge said in his summing up of the tribunal.
I have attached a copy of my blog transcript of the judge’s summing up.
https://merthyrcouncilcoverupblog.home.blog/2019/10/06/et-judgement-transcript/
I also have a recording of the Judge’s comments.
I give, below, an extract from the transcript:
But we make this point. The reason we are conserving to ensure that a written judgement comes into the public domain is that we see on the basis of our findings the fact a clear conflict of interest between the respondent council’s commercial activities in providing HR resources to schools and it’s duty under statutes are the local authority regulating schools and protecting the interests of the children in their area attending their schools.
Whatever the truth or otherwise about the Head Teacher and the approach to the child, we get the view that the Chair of Governors who we heard from was clearly in the position of defending that Head Teacher an the school before considering the interests of the child and albeit that an inquiry might have resulted in the same result that eventually came about.
We consider it a very concerning feature of this case that a Head Teacher attempts to have the dismissal of a HR representative for providing what we consider to be honest advice at that point in time.
Even in circumstances where there had been mistaken advice or some problem with that advice, the capitulation of the LEA and the wishes of those teachers on the basis that they would withdraw their contract with the HR department, seem to us to be very troubling indeed and one which needs to be in the public domain.
We realise that these are matters that the ET have no jurisdiction over, but having found these facts it appears that if they are in the public domain it may be that those authorities that do have the powers and jurisdiction to deal with these matters may consider that something needs to be done in order to ensure that systems are in place where these conflicts cannot exist.
As I have said there is no judgement as yet as we consider important that we fill out the full details of the reasons.
But both parties should be aware that the claimant did not win the case and the respondent you are not losing the case on the basis of the claims that were brought but we will point out our concerns that if other claims had been brought they would have potentially been successful.
I would advise the respondent that it is worth reading the Shoesmith decision from the Court of Appeal as to external influences involving public employees engaged in statutory duties.
Looking at the Report specifically I would make the following observations/comments/questions:
Para 8 refers to the Chair’s decision that no independent investigation or disciplinary was needed.
The report does not indicate the reasons why the Chair had arrived at this decision.
Para 9 states that there was no written evidence of the meeting of 25th February.
This is a SERIOUS breach.
The Chair of Governors, stated under oath as a witness at the ET, that she would have disposed of her notes of the meeting because of their confidential nature.
Para 10 refers to a meeting on 17th March where there is a record in the minutes of that meeting of the Chair’s decision that no investigation was necessary.
However, the report does state that the minutes did not record the reasons why the Chair arrived at that decision.
The report should have noted that my son did not receive an invitation to that meeting.
The minutes of that meeting conclude the consideration of the Safeguarding matter formally recording the allegation as UNFOUNDED.
Para 13 again refers to the significant weakness because there was no record of the meeting and the decisions taken.
This para also states that the Chair did not breach statutory guidance in deciding not to hold an independent investigation.
There was a breach of the statutory guidance because of the fact that there was no record of this meeting and of the decisions taken.
Para 14 states that there is no requirement to hold an independent investigation where the allegation is found to be demonstrably false or unfounded.
The minutes of the meeting on 17th March concluded that the allegation was unfounded.
Yet again, there is no record of how the decision that the allegation was unfounded was arrived at.
Para 21 refers to a potential situation where the relationship between the Head and Chair is too close.
This was precisely the situation that my son found himself in.
My son was targeted by the Head and Chair who with 4 other heads in the Southern Cluster group of schools informed the LA that they would withdraw from the LA HR SLA if my son was not sacked.
Further to this some very important information was missing from the report.
The Auditor was advised in January by my son that the LA had informed the tribunal that the allegation against the Head had been withdrawn.
I have made FOI requests to the LA asking for the date when the withdrawal of the allegation was received at the school and the date when the appropriate LA Officer was informed of the withdrawal of the allegation.
The LA refused to provide the information.
The Auditor has made no account of having sight of this information either.
This omission of these dates appears to be strange.
Why did the Head, Chair and Lead Safeguarding Officer not report this fact to the Auditor.
If the allegation had been withdrawn there should have been some record of this fact.
As there is no mention I assume that the Auditor was not informed of the withdrawal and had not seen any evidence to confirm these facts.
Para 22 states that the Head and Chair stated that schools in the Cluster began to consider alternative suppliers of HR advice some 2 years before the events of February 2016 as they were dissatisfied with the value for money of several of the Council’s SLAs.
And with regard to HR with the quality and timeliness of the advice provided.
If that was the case, why did the Heads of only 5 of the schools in the Southern Cluster demand that the LA dismiss my son.
All the other schools in all the other clusters continued with the HR SLA.
The ET Judge stated that on the balance of probability it was likely that the cause of the demand from the schools was related to the Head of Ynysowen Primary school being angry with the advice given by my son for the need to consider an independent investigation into the child protection issue.
You say that you are satisfied that you have reviewed the relevant information in relation to the Council’s arrangements sufficiently to report.
I am sorry but I disagree.
The report does not include lots of relevant information supplied to the Auditor.
I am not asking that you investigate further.
I am asking that the report should be complete and not selective.
I am aware of all WAO reports on the Council.
I am also aware of the report of the independent external adviser.
I shall be grateful to receive your comments on the points I have raised.
Regards
Geoff Jones
2nd Email Response from Huw Rees
My Response
You will note that some sections in these screenshots have been highlighted by me.
To the right of these highlights are little boxes. These boxes include my comments/questions related to each section. These comments/questions are visible in the the live document. I will include these comments etc separately later in this blog.
These comments/questions need to be addressed by Merthyr Council Senior Managers and the WAO Auditors who compiled the report. There are significant omissions of information provided to the Auditor.
The Art of OBFUSCATION
I have raised my concerns many times regarding the minutes of meetings of Merthyr Council not being fit for purpose.
It would appear that those officers responsible for recording the minutes and organising the agendas and reports for meetings have been trained in the art of OBFUSCATION.
The Art of Writing Minutes
It would appear that the minutes of Council meetings are recorded in such a way as to avoid Officers being held accountable for what they tell members at meetings.
Officers present a written report to a Committee and members then ask questions of the Officers relating to the report presented.
The questions are recorded in the minutes in some detail. However, the Officers’ responses to those questions are not recorded at all. The minutes merely state that the Officers responded to the questions.
The following screenshots show an example of the minutes where a report is presented by an Officer Gary Evans.
The minutes state that Mr Evans responded in detail to the questions asked by the Committee.
The questions are recorded in the minutes but the answers to the questions are not recorded.
An example of the Council’s culture of OBFUSCATION.
This screenshot shows an analogy of how the Council minutes can be not fit for purpose.
You will note that, in this instance, the CEO gives incorrect information to the Committee. But the minutes, in this format, do not indicate what the CEO actually said. They only record that the CEO answered the questions in detail. Therefore, as the minutes do not record the CEO’s incorrect responses, there is no transparency or accountability that the CEO mistakenly or purposely mislead the Committee. There can be no comeback on the CEO because the minutes are written in this format.
It is my belief that this is a style of minute writing approved by Carys Kennedy – Monitoring Officer, Ellis Cooper – Interim CEO, and Simon Jones – Senior Solicitor.
You may ask why do they approve this style of minute writing?
Its because they do not want the members or the public to know the TRUTH.
Yet another example of not recording answers to questions in minutes
https://democracy.merthyr.gov.uk/ieListDocuments.aspx?CId=329&MID=3237&LLL=0#AI35143
I would ask what detailed answers did Fran Donnelly and Officers give to the members in this extensive list of questions.
Minutes:
A Member stated that Background Papers should be available for all the Panel as some Committee Members were new to the Panel.
Fran Donnelly then led the Committee in detail through the ‘Human Resources Update Report’ and responded with the Officers in detail to the following questions raised by the Committee:
· Is there a dedicated Welfare Officer Post
· Wales Audit Office recommendations – What are the Commercial Opportunities
· Paragraph 5.2 – Single points of dependency (SPOD) – Where are the Single Points of Dependency – Is there a list available of SPOD’s that all Elected Members can see – Helpful to see a real example – Helpful in terms of Scrutiny
· (Fran Donnelly advised that a Skills Audit Review had been undertaken and all the paperwork was available and a response could be obtained through the questionnaires)
· Paragraph 5.3.1 – Corporate Sickness – Detailed explanation requested in relation to Monitoring – What are the figures
· Paragraph 5.3.3 – Confirmation sought on the October 2019 date
· Paragraph 5.4.3 – Are figures available for previous years – What will the figure be in March 2020
· Paragraph 7.4 – Stress Survey –Why has it taken so long to evaluate the second survey
· Paragraph 7.4 – Is there a Bullying Policy
· Paragraph 4.1 – Wales Audit Office recommendations – What evidence is held regarding reviews with Staff – How many Staff are on Capability Measures
· (Fran Donnelly advised that these figures could be provided)
· Explanation requested of the Procedure when an employee is off sick on stress
· Extra work for staff due to staff leaving – How is this information fed back to Members
· Paragraph 5.2.1 – SPOD’s- Work undertaken for VR/VER –Useful to undertake this again to identify the risks that currently exist post VR/VER as well – Explanation requested in relation to transfer of skills and knowledge
– What training is being put in place as a lot of knowledge is required in a short period which could lead to further stress – How is this being fitted into the training plan
· Succession Planning – How is this information being filtered and to share skills throughout existing staff to avoid risks
· Paragraph 5.3.3 – Corporate Stress – Pressure on teams and welfare issues – Not just skills and training but cultures and behaviours as well – Is this something that is being looked at and if so what things are in place at the moment
· Are there any savings to be made by looking at posts rather than fixed term or agency
· Significant number of agency staff in departments for a significant period of time – What departments do agency staff work in
· Front line posts do not seem to stand out as typical agency staff for a significant period of time
· Explanation requested of the Model used
· Paragraph 5.3.4 – Marked increase in the number of staff off due to stress compared to previous years – Have we identified the reasons for that and are there any trends in any particular department
· Stress Survey next year – Will this identify the difference between work related stress and family related stress
· When staff report stress the Manager relies on staff advising if it is work or family stress – How confident is the Authority with this
· Is the post or the person made redundant
· Short term sickness – Do we currently analyse patterns and if patterns do emerge what is done or is this part of the measures that have been put in place
· How confident is the Officer that with the systems that have been put in place in relation to uniformity and equality that everyone is dealing with sickness absences, stress, work related stress in exactly the same manner
· Concern at Employees taking Leave rather than Sick – What is the approach to change this culture – If someone is on sick then they should be on sick leave and appropriate measures put in place such as Occupational Health to get them back to work
· What is the Authority planning to do regarding this culture – What Policies are in place around compulsory redundancies – What will be done in relation to this culture
· Under Compulsory Redundancy scenario what is the criteria or system used to determine
· Are the criteria weighted equally
· (The Interim Chief Executive advised that a response would be provided on criteria)
· How are skills assessed
· Paragraph 5.4.6 – Does this include recruiting apprentices into the organisation
· What are the Terms and Conditions for agency staff
· Is there a solution to the question of the high number of agency staff
· In an ideal world what would be the required number of agency staff be
· In terms of percentage what is the agency percentage in terms of the overall staffing numbers
· How are agency regulations applied
· Figures of full time staff, part time staff, staff on fixed contracts
· Paragraph 5.2.1 – SPOD’s – Committee needs to know who these staff are across the Authority
· Agency staff – Costs should be looked at as a matter of urgency
The Chair then referred to recommendation 2.2 in the report and requested further information in going forward and proposed the following:
Extend an invitation to the Head of Human Resources to attend a future Meeting to look at:
· Follow up on the SPOD approach that can be fed into an overall Training Needs Analysis and its links to the Organisation
· Further information on the SPOD – To look at a proper example of a SPOD through the Skills analysis
· How many SPOD’s are there and in which Department
· The Background Papers for this item when this matter is next considered
· Information on the impact of the VR/VER – Decisions that have been made in the past few years
· Update on progress made against the Agency figures
· Comparison if the Authority were to take on agency staff what would be the difference in cost
· Capability – The number of staff undertaking the Capability Process – To test how the current capability process is working and if there could be improvements – Example of someone who has gone through the process
· Update on monitoring on work related stress
· Location of agency staff and reasons for why they are still agency staff
These proposals were then agreed by the Committee.
Various screenshots
To be continued
Part 1
Transcript of ET Judgement
Friday 3rd May 2018
Judge Wayne Beard chair of panel speaking
I just want to be clear, that we are not giving a judgement at this moment in time.
We are simply giving an indication of the judgement and we will be providing, in writing, on a reserved basis. The reason we are doing that is because we consider that there are aspects of the factual matter of this case that are in the public interest, and need to ensure they are in the public domain in a written judgement, which of course, in this day and age will then be placed on the website in respect of judgements for employment tribunal decisions that will be available to any interested parties.
The reason for doing that is that we consider that the claimant’s claims are not going to be successful in terms of both claims that he brought forward.
In respect of the disclosure claim we are of the view that the evidence does not on the bounds of probability demonstrate any link between the specific disclosure relied upon by the claimant and the treatment of the claimant at a later stage.
In respect of the disability discrimination we do not consider that there is sufficient evidence to demonstrate that the writing of the email was something done in consequence of the claimed disability.
We should say, just as a little explanation, that, whilst we note that that the claimant’s medication was doubled at that point in time, we have no medical evidence to demonstrate on what the impact and effect of that medication would have had on the claimant’s conduct and behaviour and, therefore, was not in a position to find in favour of the claimant.
We say this, that the claimant withdrew any thought of an ordinary unfair dismissal claim in August of 2017 in a preliminary hearing.
We are of course bound by that decision and there’s been no appealing or request for consideration in respect of that. In fact the times for doing so have long passed.
But we would have drawn the conclusion on the evidence we have heard that the claimant was unfairly dismissed.
We realise that we might have heard different evidence had the claimant brought that claim and that might have impacted on the outcome.
But we make this point.
The reason we are conserving to ensure that a written judgement comes into the public domain is that we see on the basis of our findings the fact a clear conflict of interest between the respondent council’s commercial activities in providing HR resources to schools and it’s duty under statutes are the local authority regulating schools and protecting the interests of the children in their area attending their schools.
Whatever the truth or otherwise about the Head Teacher and the approach to the child, we get the view that the Chair of Governors who we heard from was clearly in the position of defending that Head Teacher and the school before considering the interests of the child and albeit that an inquiry might have resulted in the same result that eventually came about.
We consider it a very concerning feature of this case that a Head Teacher attempts to have the dismissal of a HR representative for providing what we consider to be honest advice at that point in time.
Even in circumstances where there had been mistaken advice or some problem with that advice, the capitulation of the LEA and the wishes of those teachers on the basis that they would withdraw their contract with the HR department, seem to us to be very troubling indeed and one which needs to be in the public domain.
We realise that these are matters that the ET have no jurisdiction over, but having found these facts it appears that if they are in the public domain it may be that those authorities that do have the powers and jurisdiction to deal with these matters may consider that something needs to be done in order to ensure that systems are in place where these conflicts cannot exist.
As I have said there is no judgement as yet as we consider important that we fill out the full details of the reasons.
But both parties should be aware that the claimant did not win the case and the respondent you are not losing the case on the basis of the claims that were brought but we will point out our concerns that if other claims had been brought they would have potentially been successful.
I would advise the respondent that it is worth reading the Shoesmith decision from the Court of Appeal as to external influences involving public employees engaged in statutory duties.
Thank you for your attendance.
Judge Wayne Beard
Part 2
The following screenshots are of a communication between CJ and the Leader of the Council from July 2017.
You will note that the Leader of the Council, Kevin O’Neill (KO) states that:
1 I note that the judgement raises some concerns about potential conflicts of interest arising from certain processes within the authority and that the tribunal recommends a review of those processes to ensure that safeguarding processes are robust and that children cannot be exposed to risk of harm by manipulation or influence of those processes by interested individuals.
The Judge actually said:
the fact a clear conflict of interest between the respondent council’s commercial activities in providing HR resources to schools and it’s duty under statutes are the local authority regulating schools and protecting the interests of the children in their area attending their schools.
Whatever the truth or otherwise about the Head Teacher and the approach to the child, we get the view that the Chair of Governors who we heard from was clearly in the position of defending that Head Teacher and the school before considering the interests of the child and albeit that an inquiry might have resulted in the same result that eventually came about.
We consider it a very concerning feature of this case that a Head Teacher attempts to have the dismissal of a HR representative for providing what we consider to be honest advice at that point in time.
Even in circumstances where there had been mistaken advice or some problem with that advice, the capitulation of the LEA and the wishes of those teachers on the basis that they would withdraw their contract with the HR department, seem to us to be very troubling indeed and one which needs to be in the public domain.
We realise that these are matters that the ET have no jurisdiction over, but having found these facts it appears that if they are in the public domain it may be that those authorities that do have the powers and jurisdiction to deal with these matters may consider that something needs to be done in order to ensure that systems are in place where these conflicts cannot exist.
I would advise the respondent that it is worth reading the Shoesmith decision from the Court of Appeal as to external influences involving public employees engaged in statutory duties.
2 I have sought reassurance from my CEO that the advice of the tribunal is being acted upon and am satisfied that it is.
To ask the CEO for reassurance is rather lame. What did the Leader expect him to say.
There is no indication of how the advice of the tribunal was being acted upon.
There should have been an independent review of the comments made by the tribunal.
3 I am further satisfied that there is a proper process for whistleblowing within the Authority, which has been reviewed by WAO and that staff continue to be reminded of that process to ensure they are aware of it.
It is one thing to have a policy and procedure for whistleblowing. That does not mean that the process is actually followed.
