Dear West Midlands Strategic Health Authority,

can you please send me a copy of your reply to an FOI request about 3 years worth of bonuses and expenses for staff/ceo and executive directors, that was sent around the end of November to NHS Trusts.

Do you have Gifts, Hospitality and Sponsorship Policy or similar and a Code of Conduct and can you please email me a copy.
Can you send me a copy of your register for 2008/9 showing details of Gifts, Hospitality and Sponsorship.

Yours faithfully,

Gerry Hallright

Dear Sarah,

thank you for your reply.

I do have some follow-up questions.

1. How much was paid (a) in total to all staff, (b) to the chairman, (c) to non-executive directors, (d) to the chief executive and (e) to executive directors in bonuses/non-consolidated performance pay awards in
each of the last two financial year for which figures are available

2. Your hospitality policy says

6.1.1 Gifts offered by Contractors, existing suppliers or others, other than those outlined in 6.1.2, should be politely but firmly declined.

6.1.2 Articles of low intrinsic value, (not exceeding £25 value per item), such as diaries or calendars, or small tokens of gratitude from patients/relatives, need not be refused. However, if several small gifts are made from the same or a related source within a 12-month period totalling more than £100, they should be declared.

6.1.5 Entertainment – staff should only accept free tickets to sporting or other entertainment events with prior approval of their line manager/Director

Do you have any information to show why free tickets to sporting events are classed differently from Gifts outlined in 6.1.1 ?

3. For the Hospitality listed below, what contractor, organisation or individual paid for this?
What was the Hospitality in connection with?
Had the payer been awarded a contract by the NHS?

Administrator 1.12.08 Invitation to Walton Hall – approved by Line Manager Approx £250

4. For the Hospitality listed below, what contractor, organisation or individual paid for this?
What was the Hospitality in connection with?
Had the payer been awarded a contract by the NHS?
Who approved the Hospitality to the Director of Finance?

Director of Finance 21.2.09 Football tickets x 2 Approx £50

Yours sincerely,

Gerry Hallright

Dear Sarah,

thank you for your reply.

I have some more questions on some items:

1) I did have a look at the 2008/9 Annual report as you suggested, but I could not see any details for bonuses paid to Directors in 2008/9 as part of their total remuneration.
Can you tell me for all Directors combined and CEO separately how much the bonus payments were in 2008/9?

3) Can you tell me whether the event booking that you described prior to the offer of Hospitality was paid with NHS money, what the cost of this event was and what the event booking was for, eg a conference for public health?
Can you confirm that Walton Hall you mentioned is the one at the following address? Walton Wellesbourne Warwickshire CV35 9HU.

4) Can you please tell me what contracts Provex has won at the SHA since April 2008, the amount and what these covered?

Yours sincerely,

Gerry Hallright

Dear Dakin Sarah,

thank you for your reply.

Yours sincerely,

Gerry Hallright

Dear Sarah,

thank you for your reply.

I would like to appeal against the answer you gave me in question 1:

1. Further details of bonuses paid to Directors in 2008/9 as part of their total remuneration. Details of bonuses for all Directors combined and the Chief Executive separately.

As in the response to your previous request, these are listed in our annual report for 2008/09 under "other remuneration". Since your last request, the annual report for 2009/10 (which also contains this information) has been published. This is also available on our website.

I found the NHS Finance Manual which deals with how information is presented in the Annual Report and I have copied the relevant section dealing with remuneration.

This manual says that "other remuneration" does not contain bonus payments. It says that peformance bonuses are under the salary column.
My question was therefore can you separate out the bonus element from the main salary element and send me the information I was interested in.

Thank you.

Salary and other remuneration:
this covers both pensionable and non pensionable amounts. The amounts paid or payable by the NHS body in respect of the period the senior manager held office must be shown. Where, e.g. an individual held a contract of employment for the entire financial year but was only a senior manager for six months, it is the remuneration for six months which should be shown. Where there has been overlap in a post, e.g. where there have been two finance directors for a month, both must be shown, together with the date the post was started or vacated.
Salary includes:

• all amounts paid or payable by the NHS body including recharges from any other health body

• the gross cost of any arrangement whereby a senior manager receives a net amount and an NHS body pays income tax on their behalf

• any financial loss allowances paid in place of remuneration

• geographical allowances such as London weighting

• performance related bonuses, and

• any other allowance which is subject to UK taxation and any ex-gratia payments.

Salary excludes:

• recharges to any other health body
Department of Health NHS Finance Manual December 2009

• reimbursement of out-of-pocket expenses

• reimbursement of "travelling and other allowances" (paid under determination order) including home to work travel costs

• employers' superannuation and National Insurance contributions

• golden hellos and compensation for loss of office, and

• any amount paid which the director must subsequently repay.

Other remuneration:

Payments should be shown in an additional column where a senior manager holds two contracts of employment, or some other distinction between duties as a director and other duties can be soundly established. Golden hellos and compensation for loss of office should be included here.

(d) Explanation of relative importance of the relevant proportions of remuneration which are, and which are not, subject to performance conditions.

Yours sincerely,

Gerry Hallright

Dear Steve Hilton,

thank you for your reply.

I note that your reply dated 18th August stated that:

"As in the response to your previous request, these are listed in our annual report for 2008/09 under
“other remuneration”. "

In your reply dated 21st September, you stated:

"bonuses paid to Directors of the Strategic Health Authority are included in the Annual Reports, within the column marked "Salary (bands of £5000)"

It would appear that the information you had supplied previously on the 18th August was incorrect.

The 60 day FOI aggregation period now encompasses only the 19th July FOI request.
Can you please estimate how many hours were used to answer the 19th July FOI.

I would like to request:
1) Can you tell me, separating out from the total remuneration, for all Directors combined and CEO separately how much the bonus payments were in 2008/9?

2) In your reply date 12th July, you mention Walton Hall as a venue you used for an event booking.

i) Can you confirm that Walton Hall you mentioned is the one at the following address? Walton Wellesbourne Warwickshire CV35 9HU.

ii) What was the date of the event that you mention as having been booked, what was the cost and what was the purpose eg a conference for public health?

Can you please estimate how many hours it has taken you to answer this FOI.

Yours sincerely,

Gerry Hallright

Dear West Midlands Strategic Health Authority,

I am writing to you to see if you are able to respond to my FOI request dated the 29th September 2010 as this is now overdue.

Yours faithfully,

Gerry Hallright

Dear Steve Hilton,

Thank you for your reply dated the 15th November.
I have some questions arising from your answers.

1) Is the administrator or their line manager who approved the Hospitality from "Walton Hall" working at the SHA?
If so, does one of them hold any information clarifying the identity of "Walton Hall, a hotel in the region" or what "the event booking" refers to "in connection with an offer made to a member of staff following an event booking" in your FOI reply?

2) For 2008/9 and 2009/10 what were the total payments made by the SHA to Walton Hall Walton Wellesbourne Warwickshire CV35 9HU or to Barceló Hotels General Partner Ltd., the owners of Walton Hall?

I would be grateful if the SHA can assist and advise me on identifying payments to the Walton Hall venue as described in this question, as your payments system may hold the payee in a different way to the one I have described above.

3) In your 12th July 2010 FOI reply, it appeared the Finance Director had approved his own Hospitality for the "Director of Finance 21.2.09 Football tickets x 2 Approx £50" Hospitality entry.

The SHA Hospitality policy states:
6.1.5 Entertainment – staff should only accept free tickets to sporting or other entertainment events with prior approval of their line manager/Director

Was what appears to be an infraction of the policy, put before the SHA Audit Committee?
Are there any Audit Committee minutes which relate to this possible breach?

4) Please send me a copy of your 2009/10 Hospitality register.

Please estimate how many hours have been used to answer this FOI.

Yours sincerely,

Gerry Hallright

Dear WMSHA,

Dear West Midlands SHA,

1.1 I acknowledge receipt of the SHA 22nd December 2010 email and your decision to withhold information under section 14(1) of the FOIA. I would like to appeal this decision.
We have had no previous correspondence prior to the series of FOI requests commencing the 4th June 2010, relating to Hospitality items. I hold no grievance or complaint against the SHA

1.2 The points made in the s14(1) ICO guidance and Decision Note FS50232439 have informed the comments in this reply.

1.3 I would like to address the three factors for refusal given by the SHA, then address what I have interpreted as three reasons given for refusal by the SHA.

1.4 Before moving to the arguments, I would like to give the details of another SHA FOI reply, as it appears very relevant to this case.

After receiving the section 14(1) notice I obtained a copy of the SHA FOI reply 2009-183 dated 26th June 2009, which I believe in essence had asked the same question I requested.

This 2009-183 FOI asked for “details of any bonuses paid last year, … of the CEO,Chairman and all Board Members”. The SHA supplied the bonus figures in a reply and included details of recruitment and retention premia for these posts.

It seems surprising that two essentially the same requests were handled in such different ways.
Therefore it appears the information I requested was already held by the SHA from a previous FOI request, but this was not supplied to me in the 7th June 2010 or subsequent SHA responses.

I also note what appears to be a discrepancy between the 2009-183 FOI response stating:
“No hospitality was declared by any Board Members in 2008/09.”, and the Hospitality entry to my reply dated the 7th June 2010, which states “Director of Finance, 21st February 2009, Football tickets x2 £50 value”.

1.5 I have compiled a table which attempts to summarise details of the series of Hospitality FOIs.

General Bonus
Request Reply Hospitality Payments Walton Hall Provex TOTAL
1 04/06/10 07/06/10 3 1 4
2 11/06/10 12/07/10 1 2 3 3 9
3 19/07/10 18/08/10 1 3 (s12) 3 (part s12) 7
4 23/08/10 21/09/10 (appeal) 1 (part s12) 1
5 29/09/10 15/11/10 1 2 3
6 22/11/10 22/12/10 1 3 2 6 (s14.1)
TOTAL 5 6 11 8 30

Hours Used SHA Hours Used
Request Days1 Days2 Assessed Estimated
1 04/06/10 3 3 hours
2 11/06/10 4 21 15 hours + 8 hours
3 19/07/10 7 22 3 hours
4 23/08/10 5 20
5 29/09/10 8 33 6 hours
6 22/11/10 7 22
EXPLANATION TO TABLE
Days1: time between requests; Days2: time to answer; hours used to answer: SHA assessment

1.6 The three factors given by the SHA for refusal were:

FACTOR 1: "Is the request designed to cause disruption or annoyance"
I have absolutely no intention or have expressed intention to cause disruption and reject the SHA view. I do not feel the SHA has supplied any reasonable evidence that supports this assertion.

FACTOR 2: "Does the request lack any serious purpose or value"
In the 10th June FOI request I quoted the SHA Hospitality guidance which states that Hospitality under £25 need not be refused. But both the “Walton Hall” £250 and the Football Tickets £50 Hospitality fall above this limit and are in my opinion items for valid public scrutiny.

There is a wider public interest in knowing whether NHS bodies follow their guidance on Business conduct as these may relate to value for money questions. This is especially the case for SHAs who performance manage other NHS organisations and set the tone within a region.

On the 21st November I quoted the Hospitality policy again in relation to a question about whether the Finance Director had followed the policy in relation to authorising his own expenditure for football tickets. I believe a reasonable person would see the serious purpose in this question.

The Department of Health “Code of Business Conduct, December 2009” states the following, but it is unclear if the SHA would be aware of the details of this code or not.

“40. Providing or accepting entertainment, such as tickets to major sporting or cultural
events, is even more sensitive. It is not likely to be possible to justify either the provision
or the acceptance of entertainment as a means of furthering the business of the Department. Approval should always be sought in advance before accepting any offer of this nature.

41. Approval will not be given by DH Management under any circumstances for:
• tickets for any function or event at which the host (the person who issued the
invitation) is not present”

In addition, the national NHS Standards of Business guidance incorporates the following paragraph.
There would be a reasonable expectation that the SHA would be aware of the guidance as these are usually incorporated into Standing Financial Instructions.

“Preferential treatment in transactions
15. Individual staff must not seek or accept preferential rates or benefits in kind for private
transactions carried out with companies with which they have had, or may have, official dealings on
behalf of their NHS employer. (This does not apply to concessionary agreements negotiated with
companies by NHS management, or by recognised staff interests, on behalf of all staff - for example, NHS staff benefits schemes.)”

FACTOR 3: "Can the request fairly be seen as obsessive"

It is unclear to me whether the SHA is additionally arguing the section 14(1) refusal on grounds of repetition or not, or merely obsessiveness. It is difficult to grasp the concept of obsessiveness without repetition, although it could be envisaged that either a battery of questions which were nominally different but only very marginally so, could fall within this category or perhaps voluminous requests over time.

One of the characteristics of a vexatious request is the volume of requests received within its context. The table in 1.5 shows the volume of questions for the series of exchanges.

It would seem perverse to argue that a request is vexatious because the same question has been asked repeatedly due to a section 1(1) failure by a public body. I believe this situation applies to the requests for information for Directors bonuses.
It would seem appropriate to put these requests to one side and examine the pattern of the remaining requests. There were 30 questions during this period, less 6 for the Directors bonuses, leaving 24 questions. The General Hospitality questions requested copies of previous FOIs mainly and could be discounted.
This leaves the Walton Hall and Provex items, which the SHA has specifically mentioned in the section 14(1) refusal.

WALTON HALL
There are a total of 11 questions that can be identified during this period.
Three of these fall under the section 12 application by the SHA.
The remaining questions are bundled into three, fairly short, interrelated groups.
I do not believe this amounts to excessive questioning.

PROVEX
There are a total of 8 questions that can be identified during this period.
Three of these fall under the section 12 application by the SHA.
The remaining questions are bundled into two, fairly short, interrelated groups.
I do not believe this amounts to excessive questioning.

LOGICAL SEQUENCE
The questions follow a logical sequence, each question building on previous answers supplied.

1.7 Reasons given by SHA for applying s14(1)

a) This is the sixth FOI request you have submitted since 4 June 2010.
I believe there were five FOI requests with one appeal.
Over the 25 week period from the 4th June to the 21st November, this represents an average of one request every 5 weeks, which on the surface does not appear excessive.

b) with particular reference to two entries on the SHA hospitality register, with
a nominal combined value of £300
c) Compliance with your five requests to date has considerably exceeded that nominal value.

The Decision Note FS50232439 contains the comment: “although a request cannot be treated as vexatious simply because it causes inconvenience or expense”.
There are other factors that should be considered other than a purely monetary comparison of SHA expense and the nominal value of the Hospitality items being considered. Otherwise, following this line, very large NHS expenditure items might warrant excessive numbers of FOI requests.
The purpose and value of the FOIs has already been explored in the FACTOR 2 section.

1.8 Overall, although there may be some superficial similarities with requests that have been labelled as vexatious, the series of FOIs requests described here form a purposeful, logical progression with a reasonable person would discern the goal of these requests.

Yours sincerely

Gerry Hallright

PS
I am forwarding this series of FOI exchanges to the Information Commissioner's Office for consideration under section 48, requesting to take into account the following possible breaches:

under section 1(1) relating to multiple instances of non disclosure of Directors bonuses
under section 1(1) relating to non disclosure of Directors premia payments
under section 1(1) relating to non disclosure of Finance Director's Hospitality in FOI 2009-183
under section 10(1)
under assist and advise
under application of the maximum 18 hours rule
unreasonable application of s14 "Does the request lack any serious purpose or value"