Good Afternoon

 

Thank you for your recent request made under the Freedom of Information
Act.

 

Unfortunately it has not been possible to respond within the statutory
timeframe. I apologise for this delay and for any inconvenience this may
cause.

 

Your request is currently being considered, and we hope to be in a
position to issue a response in the near future.

 

You have the right under Section 17 of the Ac to ask for an internal
review in respect of this delay. This should be addressed to:

Information Manager

Legal and Member Services

Town Hall

Brighton Street

Wallasey

CH44 8ED

[Wirral Borough Council request email]

 

If you are dissatisfied with the result of your internal review, you also
have the right to complain to the Information Commissioner, whose address
is

The Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

www.ico.gov.uk

 

Kind regards,

 

Sent on behalf of

 

Tracy O'Hare

Information Management

Transformation and Resources

Wirral Council

 

This information supplied to you is copyrighted and continues to be
protected by the Copyright, Designs and Patents Act 1988. You are free to
use it for your own purposes, including any non commercial research you
are doing and for the purposes of news reporting. Any other reuse, for
example commercial publication, would require our specific permission, may
involve licensing and the application of a charge.

 

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Dear Mr. Morton,

I refer to your request for an internal review, dated 27 January 2015, in
relation to your request titled “Cover up of financial abuse of disabled
people”.  A summary of your request is below, in that you requested:-

a) the name of the "experienced Senior Manager in DASS" who reviewed the
complaint 

b) from whom they received "legal support" and

c) All correspondence between DASS Director Graham Hodkinson ,the
"experienced Senior Manager in DASS" and  their  legal support concerning
this particular complaint 

d) Evidence relied upon and conclusions drawn to refute the evidence that
I have provided to Wirral Council and the legal opinion of Jenni Richards
which Wirral Council itself commissioned and which states:

Response

a)      The name of the experienced Senior Manager was Rob Vickers.

b)      Legal support was obtained from external legal resources.

I consider that the exemption contained in Section 42 of the Freedom of
Information Act, 2000 (FOIA) in respect of legal professional privilege
applies to the requested information in (c) and (d) above.

Details of the advice sought by the Council,  and its subject matter, are
contained in communications between the Council and its legal advisers. I
consider that such communications are protected by legal advice privilege,
being made confidentially between the Council as client and its lawyers
for the dominant purpose of seeking legal advice and being given such
legal advice or assistance. I have had regard to the latest guidance
issued by the ICO “The exemption for legal professional privilege Section
42 Version 1.2”

 I consider that the public interest in maintaining the exemption
outweighs the public interest in disclosure. I refer to the case of
Calland v. Information Commissioner & The Financial Services
Authority(EA/2007/01386, 8 August 2008, where the Tribunal stated :

“What is quite clear is that some clear, compelling and specific
justification for disclosure must be shown, so as to outweigh the obvious
interest in protecting communications between lawyer and client, which the
client suppose to be confidential”.

I consider that disclosure of the requested information could materially
prejudice the Council’s ability to protect and defend its legal interests.
Without comprehensive advice, the Council’s decision –making process may
be compromised because it would not be fully informed. Public interest
factors weighing in favour of disclosing privileged information are that
authorities should be accountable for the quality of their decision
–making and this may require transparency in the decision-making process.
I consider that the public interest in maintaining the exemption outweighs
the public interest in disclosure having also had regard to their being a
strong element of public interest built into the privilege itself.

I am therefore refusing your request for information under Section 17 of
FOIA, on the basis that the exemption contained in Section 42 of FOIA
applies.

If you are dissatisfied with this response to your request for
information, you have the right to complain to the Information
Commissioner. 

The Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

[1]www.ico.gov.uk

Yours sincerely

Jane Corrin

Information and Central Services Manager -  Legal and Member Services

Wirral Council

Transformation and Resources

Wallasey Town Hall Brighton Street

Wirral

Merseyside

CH44 8ED

[2]ole0

      ‘Most Improved Council’

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References

Visible links
1. http://www.ico.gov.uk/

Dear Mr Morton,

 

Freedom of Information Act 2000 (FOIA)
Case Reference Number FS50574905

 

I refer to your complaint to the Information Commissioner’s Office (ICO)
in respect of your request for information dated 12 December 2014, which
was as follows:-

 

 

Dear Wirral Metropolitan Borough Council,

Firstly can I state that it was Wirral Council who disclosed that my
previous FOI request involved the organisation known as SIL .

[1]https://www.whatdotheyknow.com/request/o...

The second part of the deeply troubling response stated:

"The situation has been considered relating to the group referred to in
the complaint. A review of circumstances relating to former residents of
SIL was commissioned by the Director of Adult Social Services from an
experienced Senior Manager in DASS with legal support. This was undertaken
both in response to an AKA recommendation and in response to provider
claims. The review concludes that there is no evidence that individuals
have not had support that they are entitled to nor have they suffered any
financial disadvantage as a result of the Councils actions, there is
therefore no requirement for a reimbursement process."

Therefore can you please provide (in the public interest) :

a) the name of the "experienced Senior Manager in DASS" who reviewed the
complaint

b) from whom they received "legal support" and

c) All correspondence between DASS Director Graham Hodkinson ,the
"experienced Senior Manager in DASS" and their legal support concerning
this particular complaint

d) Evidence relied upon and conclusions drawn to refute the evidence that
I have provided to Wirral Council and the legal opinion of Jenni Richards
which Wirral Council itself commissioned and which states:
" Leaving aside the question of FACS eligibility ,the approach of looking
to see what was being funded and,I n particular to consider what the
Claimants themselves were funding and then look at a shortfall ,is not the
correct way in which to take a decision as to the provision of community
care services and ignores Fairer Charging requirements. It is all the more
surprising that this approach was adopted ,given the concerns that have
been repeatedly expressed by Wirral itself in relation to SIL service
users as to the contributions they make towards their support packages.
The Council appears on the one hand ,to wish to criticise SIL for taking
contributions towards the cost of support from vulnerable service users (
an entirely laudable and understandable concern on the Council's part ),
whilst on the other hand being quite happy to rely upon the existence of
those contributions as a reason not to make available any further
funding."
As the Council had not responded within the statutory timescale, you asked
for an internal review on 27 January 2015. The Council responded on 16
April 2015 and provided the response to query (a) of your original request
and relied on the exemption contained in Section 42 of FOIA in respect of
the balance of the requested information. Following your complaint to the
ICO, please treat this response as a further internal review of your
original request. I have copied this response to the ICO.

 

Your outstanding request for information is as follows in connection with
the review :-

 

Query (b)

from whom they received "legal support”

 

Query (c)

All correspondence between DASS Director Graham Hodkinson ,the
"experienced Senior Manager in DASS" and their legal support
concerning this particular complaint

 

I consider that the exemption contained in Section 42 of FOIA was
correctly applied to queries (b) and (c) of your request. Section 42
provides that information in respect of which a claim to legal
professional privilege could be maintained in legal proceedings is exempt
information. I have had regard to the guidance provided by the ICO “The
exemption for legal professional privilege (section 42) Version:1.2.”The
case of Bellamy v. the Information Commissioner and the Secretary of State
for Trade and Industry (EA/2005/0023,

4 April 2006, held that there were two types of privilege within the
concept of legal professional privilege, namely litigation privilege and
advice privilege. I consider that legal advice privilege applies to the
requested information . The Court of Appeal held in United States of
America v. Philip Morris INC & Ors and British American Tobacco
Investments Ltd (Intervenor) 2004 EWCA CIV 330, that the leading modern
authority on the principles governing privilege is still Balabel V. Air
India 91988) Ch 317. In that case Taylor LJ stated, “The test is whether
the communication or other document was made confidentially for the
purposes of legal advice.” And also that “Whether such documents are
privileged or not must depend on whether they are part of that necessary
exchange of information of which the object is the giving of legal advice
as and when appropriate. I consider that correspondence passing between
DASS Director Graham Hodkinson, the experienced manager carrying out the
review and their legal support are communications which were made
confidentially , between a lawyer and their client, the Council, for the
dominant purpose of giving legal advice or assistance, and that this
correspondence attracts legal advice privilege.

 

This exemption is subject to the public interest test. The public interest
in maintaining the legal privilege exemption will normally be substantial
because legal privilege itself derives from the public interest in
maintaining confidentiality .

 

Factors weighing in favour of disclosure

·         The assumption in favour of disclosure and the rationale behind
the assumption

 

Factors in favour of maintaining the exemption

·         The concept of legal professional privilege and the rationale
behind the concept (ie ensuring frankness between lawyer and client which
goes to serve the wider administation of justice.

·         Legal advisers must be able to present the full picture, which
will include arguments in favour of their final conclusions and arguments
that may be made against these

I consider that in all the circumstances of the case the public interest
in maintaining the exemption outweighs the public interest in disclosing
the information.

 

Query (d)

Evidence relied upon and conclusions drawn to refute the evidence that I
have provided to Wirral Council and the legal opinion of Jenni Richards
which Wirral Council itself commissioned and which states: (See above)

I consider that the exemption contained in Section 30(2)(a)(iii) of FOIA
refers to the information requested in query (d) . Section 30 (2)(a)(iii)
provides that information held by a public authority is exempt information
if it was obtained or recorded by the authority for the purposes of its
functions relating to investigations which are conducted by the authority
for any of the purposes specified in Section 31 (2) and it relates to the
obtaining of information from confidential sources. The relevant purposes
specified in Section 31 (2)  are;-

(a)  The purposes of ascertaining whether any person has failed to comply
with the law and

(c )the purposes of ascertaining whether circumstances would justify
regulatory action in pursuance of any enactment exist or may arise

I have had regard to the ICO Guidance “Investigations and proceedings
(section 30) Version 1.

In Alcock v. Information Commissioner and Chief Constable of Staffordshire
Police 9case reference EA/2006/0022, 12 December 2006,) the Tribunal
confirmed that section 30 (2) is a class based exemption and therefore
there is no need for prejudice to be shown for it to be engaged.

 

This exemption is also subject to the public interest test.

Factors weighing in favour of disclosure

Public confidence can be fostered by transparency

 

Factors in favour of maintaining the exemption

The extent to which information is in the public domain

Potential effects of disclosure

Certain disclosures in relation to confidential sources could have serious
consequences.

Impede future proceedings

 

I consider that in all the circumstances of the case the public interest
in maintaining the exemption outweighs the public interest in disclosing
the information.

 

Conclusion

 

Queries (b) and (c)

 

I am refusing your request for information under Section 17 of FOIA on the
basis that the exemption contained in Section 42  of FOIA applies to the
requested information.

 

Query (d)

I am also refusing your request for information under Section 17 of FOIA
on the basis that the exemption contained in Section 30 (2) (a) (iii) of
FOIA applies to the requested information.

 

You also have the right to complain further to the Information
Commissioner, whose address is:

The Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

[2]www.ico.gov.uk

 

Yours sincerely

Jane Corrin

Information and Central Services Manager -  Legal and Member Services

Wirral Council

Transformation and Resources

Wallasey Town Hall Brighton Street

Wirral

Merseyside

CH44 8ED

 

 

Visit our website: [3]www.wirral.gov.uk

 

[4]cid:image002.jpg@01D066DD.D7571B40

      ‘Most Improved Council’

 

 

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References

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1. https://www.whatdotheyknow.com/request/o...
2. blocked::http://www.ico.gov.uk/
http://www.ico.gov.uk/
http://www.ico.gov.uk/
3. http://www.wirral.gov.uk/