QE Facilities

The request was partially successful.

Dear Gateshead Health NHS Foundation Trust,

I am interested in the establishment and operation of 'QE Facilities', which I believe is a wholly owned subsidiary company of the Trust, and in its ongoing relationship with the Trust.

Can you please disclose:
1) Copies of all papers on the subject of the establishment, management and expansion of 'QE Facilities' that were considered at:
a) Trust Board (in public or private meeting sections)
b) Trust Board sub-committees (for example, but not limited to, the Finance sub-committee)
c) The central management team
2) The relevant section from the minutes of the above meetings, recording the discussion and any decisions made regarding QE Facilities
3) The number and agenda for change band mix of staff who:
a) Have been subject to TUPE transfer from the Trust to QE Facilities so far,
b) Will be subject to TUPE as a result of the proposed expanded remit of QE facilities.
4) Copies of any professional advice commissioned/received by the Trust relating to the establishment of QE Facilities and its subsequent management and expansion - including, but not limited to, tax, financial and employment law advice from external advisors or consultants.
5) A summary of the cost of professional advice commissioned/received by the Trust relating to QE Facilities.
6) Details of and estimation of value of the equipment, property and facilities which the Trust has transferred to, or entered into lease or other commercial agreements with, QE Facilities.

I am fully aware of the detail of FOI law including the occasions on which the qualified exemption for commercial confidence may be applied (guidance here: https://ico.org.uk/media/for-organisatio...) and wish to make clear that I do not believe I am requesting commercially prejudicial information. I am interested in decisions that the Trust may have made regarding the transfer of assets, staff etc. from itself to a private company, and the implications of this. Given this context, I will robustly challenge any attempt to limit or refuse disclosure and I hope to avoid this necessity by working with you on any matters of concern, as part of your duty of assistance to requesters, while my request is being processed.

Yours faithfully,
Anne Cashman

Freedom of Information Enquiries (RR7) Gateshead Health,

1 Attachment

Dear Ms Cashman

 

Our reference: FoI 2015-136

 

Thank you for your email of 30 June 2015 where you requested information
held by Gateshead Health NHS Foundation Trust.  Your request is being
considered under the terms of the Freedom of Information Act 2000 (the
Act).

 

Your request was received on 30 June. Therefore, you can expect a reply by
28 July, unless we need to contact you to clarify your request, or the
balance of the public interest test needs to be considered.

 

Please find attached a leaflet giving guidance on our procedure for
managing requests covered by the Act.

 

Yours sincerely

 

The Information Governance Team

Gateshead Health NHS Foundation Trust

Freedom of Information Enquiries (RR7) Gateshead Health,

Dear Ms Cashman

 

Our reference: FoI 2015-136

 

Thank you for your email of 30 June 2015 where you requested information
held by Gateshead Health NHS Foundation Trust, as copied below.

 

We require further information in order to identify and locate the data
you asked for.  Could you please specify what type of information falls
under the scope of your request in question 4?

 

A lot of QE Facilities related communication between the Trust and
external advisors was in regards to operational matters, such as
accounting treatments, finance leases, logistics, or technicalities of
setting up a company. Can you please clarify whether or not such advice
should be excluded from our search?

 

Once you have clarified your request, we will be able to begin to process
your request.  If we do not receive clarification within three months your
request will be considered to have lapsed. (Under section 1(3) of the
Freedom of Information Act (FOIA), a public authority need not comply with
a request unless any further information reasonably required to locate the
information is supplied).

 

Please remember to quote the reference number above in any future
communications.

 

Yours sincerely,

 

The Information Governance Team

Gateshead Health NHS Foundation Trust

 

 

show quoted sections

Dear IG team,

Thank you for your clarification request. The short answer is 'no' - such advice that you deem 'operational' or 'technical' should not be excluded from my request. I am interested in the full range of advice you have received/commissioned regarding QE Facilities, for example:
- the establishment of the company and the legal basis you have for this as a public authority,
- the technical details of advice about the tax implications of the establishment of the company and any subsequent decisions to transfer public staff/property/assets to the company including the accounting treatment of such implications;
- the structure of leases and the relative benefits and risks of such decisions;
- employment law advice regarding the transfer of staff, hiring of other staff on different terms and conditions etc.

However I would like to be clear that should the inclusion of such materials trigger a rejection decision for my request as a whole (for example, on the £450 / 18 hours of staff time cost limit) then I would expect further communication with you to discuss possible ways of refining my request.
Yours sincerely,
Anne Cashman

Freedom of Information Enquiries (RR7) Gateshead Health,

Dear Ms Cashman

 

Our reference: FoI 2015-136

 

Thank you for your email.  Your request is being considered under the
terms of the Freedom of Information Act 2000 (the Act).

 

Your clarification was received on 22 July. Therefore, you can expect a
reply by 19 August, unless we need to contact you to clarify your request,
or the balance of the public interest test needs to be considered.

 

Yours sincerely

 

The Information Governance Team

Gateshead Health NHS Foundation Trust

 

 

show quoted sections

Freedom of Information Enquiries (RR7) Gateshead Health,

Dear Ms Cashman

 

Our reference: FoI 2015-154

 

Thank you for your request of 30 June, as clarified on 22 July, for
information held by Gateshead Health NHS Foundation Trust.

 

We are writing to advise you that we need more time to consider your
request. We believe that some of the information you requested is exempt
from disclosure under statutory exemptions which are subject to the public
interest test.  By virtue of section 10(3) of the Freedom of Information
Act, where public authorities have to consider the balance of the public
interests in relation to a request, they do not have to comply with the
request until such time as is reasonable in the circumstances.

 

We have not yet reached a decision on the balance of public interests. We
aim to complete this process and provide you with a final response not
later than by 17 September.

 

If you have any queries about this email please contact us quoting the
reference number above.

 

Yours sincerely,

 

The Information Governance Team

Gateshead Health NHS Foundation Trust

 

Dear Information Governance Team,

Thank you for your update on the progress of my request.
I am disappointed with the handling of this on two separate grounds which I would be grateful if you could respond to:

1) As you know, I have requested a range of different information within my request. You state that 'some' of the interest I have requested is exempt from disclosure. My understanding of FOI law is that that for all other parts of my request, that you do not believe exemptions apply to, should be fulfilled now, promptly and without further delay. Can you please advise when I can expect this to happen and clarify which parts of my request you believe are exempt from disclosure?

2) The ICO's guidance on extensions to timescales in order to apply public interest tests (sections 59-66 of this guidance: https://ico.org.uk/media/for-organisatio...) is clear that the 'the additional time cannot be used to determine whether the exemptions themselves are engaged' and that 'Any authority claiming an extension will still be obliged to issue
a refusal notice explaining which exemption applies and why within 20 working days.' You have not identified the exemption which applies to the information you are withholding - can you please now do this as a matter of urgency given you are in breach of statutory timescales? Doing so will have the added benefit of allowing me, if I wish, to put forward an argument in public interest for disclosure so you can consider this as part of your decision making process.

Yours sincerely,

Anne Cashman

Longworth Sharon (RR7) Gateshead Health,

2 Attachments

Hi Anna

See copy invoice attached, Julie Lewis may know more as she has
countersigned the invoice

 

Thanks

Sharon

 

From: Robson Anthony (RR7) Gateshead Health
Sent: 03 September 2015 15:21
To: Longworth Sharon (RR7) Gateshead Health
Subject: FW: QE Facilities FoI Ref. FoI 2015-136

 

 

Anna

 

The band mix is band 2 to band 8 but I don’t have this individually at
hand without asking Salaries to run a report.

 

Ben has invoiced subsequently so yes please include the £4k!

 

Personnel Projects Ltd  - I will get you the company details – Sharon can
you forward to Anna please company details and contact from Invoice
please.

 

Many Thanks

 

Anthony

 

From: Freedom of Information Enquiries (RR7) Gateshead Health
Sent: 03 September 2015 13:57
To: Robson Anthony (RR7) Gateshead Health
Subject: RE: QE Facilities FoI Ref. FoI 2015-136

 

Anthony

 

Thank you . I’m sorry to be a pain but I need further clarification:

 

·        Re 3a – I can’t work out from this table what the band mix is.
Could you please provide that?

·        Re 5 – DWF is not on the list. Ben Done mentioned in his email
that about £4,000 of their invoice was in regards to QEF. Is that the
figure I should use?

·        Re 5 – Who are Personnel Projects Limited? I did not know about
them. I will need to contact them to seek their views on disclosure. Can
you please give me details of your contact person in that company?

 

Kind regards

Anna

 

From: Robson Anthony (RR7) Gateshead Health
Sent: 03 September 2015 13:26
To: Freedom of Information Enquiries (RR7) Gateshead Health
Subject: RE: QE Facilities FoI Ref. FoI 2015-136

 

Anna

 

This should cover it!

 

Best Regards

 

Anthony

 

 

Anthony J Robson

Assistant Director of Finance| QE Gateshead

Finance Department | Bensham Hospital | Saltwell Road | Gateshead | NE8
4YL |

T: 0191 445 5360  | E: [1][email address]|
[2]www.qegateshead.nhs.uk |

Fax:0191 4455325 |M:07889307083|

 

[3]Description: Description: Copy of QE Gateshead Logo

 

This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are
addressed.  If you have received this email in error please destroy it and
notify the sender.

 

 

 

 

From: Freedom of Information Enquiries (RR7) Gateshead Health
Sent: 03 September 2015 09:59
To: Robson Anthony (RR7) Gateshead Health
Subject: RE: QE Facilities FoI Ref. FoI 2015-136

 

Dear Anthony

 

Thank you for that, but I need further details.

 

3) The number and agenda for change band mix of staff who:

a) Have been subject to TUPE transfer from the Trust to QE Facilities so
far,

Organisation Role FTE
297 CC Estates Administration Officer 1.00
297 CC Estates Administration Manager .40
297 CC Estates Administration Architect 1.00
297 CC Estates Administration Building Officer 1.00
297 CC Estates Staff - Maintenance Engineer 1.00
297 CC Estates Administration Secretary .64
297 CC Estates Staff - Maintenance Labourer .61
297 CC Estates Administration Officer .64
297 CC Estates Staff - Maintenance Apprentice 1
297 CC Estates Staff - Maintenance Apprentice 1.00
297 CC Estates Staff - Maintenance Electrician .60
297 CC Estates Staff - Maintenance Gardener/Groundsperson 1.00
297 CC Estates Administration Clerical Worker .32
297 CC Estates Staff - Maintenance Fitter .40
297 CC Estates Staff - Maintenance Carpenter 1.00
297 CC Estates Staff - Maintenance Gardener/Groundsperson 1.00
297 CC Estates Staff - Maintenance Electrician 1.00
297 CC Estates Administration Engineer 1.00
297 CC Estates Administration Architect 1.00
297 CC Estates Staff - Maintenance Apprentice 1.00
297 CC Estates Staff - Maintenance Fitter 1.00
297 CC Estates Administration Building Officer 1.00
297 CC Estates Staff - Maintenance Labourer 1.00
297 CC Estates Staff - Maintenance Electrician 1.00
297 CC Estates Staff - Maintenance Fitter 1.00
297 CC Estates Staff - Maintenance Gardener/Groundsperson 1.00
297 CC Estates Administration Senior Manager 1.00
297 CC Estates Administration Engineer 1.00
297 CC Estates Administration Manager 1.00
297 CC Estates Staff - Maintenance Labourer 1.00
297 CC Estates Staff - Maintenance Labourer 1.00
297 CC Estates Administration Officer 1.00
297 CC Estates Administration Architect 1.00
297 CC Estates Staff - Maintenance Labourer 1.00
297 CC Estates Staff - Maintenance Fitter 1.00
297 CC Estates Administration Clerical Worker 1.00
297 CC Estates Staff - Maintenance Carpenter 1.00
297 CC Estates Staff - Maintenance Apprentice 1.00
297 CC Estates Administration Architect 1.00
297 CC Estates Staff - Maintenance Fitter .40
297 CC Estates Staff - Maintenance Building Craftsperson 1.00
297 CC Estates Staff - Maintenance Carpenter .61
297 CC Estates Staff - Maintenance Plumber 1.00
297 CC Estates Staff - Maintenance Engineer 1.00
297 CC Energy - Queen Elizabeth Building Officer 1.00
297 CC Estates Administration Architect 1.00
297 CC Estates Staff - Maintenance Labourer 1.00
297 CC Estates Staff - Maintenance Building Craftsperson 1.00
297 CC Estates Staff - Maintenance Electrician 1.00
297 CC Estates Staff - Maintenance Electrician 1.00
297 CC Estates Staff - Maintenance Engineer 1.00
297 CC Estates Administration Engineer 1.00
297 CC Estates Staff - Maintenance Fitter 1.00

 

b) Will be subject to TUPE as a result of the proposed expanded remit of
QE facilities.

 

A further circa 400 staff will be transferred as a result of the proposed
expansion. This will include portering, catering, domestic, facilities and
operations staff of all bandings within those departments. This
information is still being gathered.

 

5) A summary of the cost of professional advice commissioned/received by
the Trust relating to QE Facilities.

 

Summary cost of advice

7,833.72 BOND DICKINSON LLP | 4187545 | 31-OCT-14 | | E1021350
6,500.00 PERSONNEL PROJECTS LTD | 007.0229.14 | 31-JUL-14 | | CONSULTANCY
JULY 14
3,250.00 PERSONNEL PROJECTS LTD | 008.0232.14 | 31-AUG-14 | | CONSULTANCY
AUG 14
1,300.00 PERSONNEL PROJECTS LTD | 009.0235.14 | 30-SEP-14 | | CONSULTANCY
SEP 14
10,650.00 DELOITTE AND TOUCHE LLP | 1111123661 | 27-NOV-14 | | VAT
SERVICES FOR QE FACILITIES
10,650.00 DELOITTE AND TOUCHE LLP | 1111123663 | 27-NOV-14 | | VAT
SERVICES FOR QE FACILITIES
8,132.00 DELOITTE AND TOUCHE LLP | 1111130925 | 15-DEC-14 | | VAT
SERVICES FOR PFMC
10,054.40 DELOITTE AND TOUCHE LLP | 1111153920 | 25-FEB-15 | | PROF CHGS
VAT MTH 7
10,054.40 DELOITTE AND TOUCHE LLP | 1111153923 | 25-FEB-15 | | PROF CHGS
VAT MTH 7
1,200.00 BOND DICKINSON LLP | 4171876 | 28-APR-14 | | ECC ADVICE REF PFMC
UP TO 27/04/14.
3,380.00 BOND DICKINSON LLP | 4174757 | 30-MAY-14 | | E1021265 REF
TJC/BCB/GAT/18/68
2,300.00 BOND DICKINSON LLP | 4176235 | 26-JUN-14 | | Q E1021350  RE
EMERGENCY CARE CENTRE E-MAILED ESTATES
2,535.00 BOND DICKINSON LLP | 4179367 | 30-JUL-14 | | E1021350
4,012.50 BOND DICKINSON LLP | 4181980 | 29-AUG-14 | | E1021350
10,547.50 BOND DICKINSON LLP | 4184087 | 30-SEP-14 | | E1021350
21,964.50 S/Cr Bond Dickinson E1021350 Prof Fees
3,250.00 S/Cr Personnel Projects Limited Prof Fees

 

 

6) Details of and estimation of value of the equipment, property and
facilities which the Trust has transferred to, or entered into lease or
other commercial agreements with, QE Facilities.

 

Gateshead Health NHS Foundation Trust
QE Facilities
transfer of assets.
£
Building remaining
cost                208,636
Retail Leasing            2,250,000
Capital Equipping                432,152
Land                193,492
From Build Cost
Schedule          23,653,343
Total          26,737,623

 

From: Robson Anthony (RR7) Gateshead Health
Sent: 02 September 2015 17:36
To: Freedom of Information Enquiries (RR7) Gateshead Health
Subject: RE: QE Facilities FoI Ref. FoI 2015-136

 

Dear Anna

 

Apologies I thought I had forwarded details….

 

We had a TUPE transfer of 54 staff initially from the Estates Department
at the FT to QEF Limited.

 

Assets transferred included Buildings of £23.6m, Land £193k and equipment
of £432k.

 

Best Regards

 

Anthony

 

From: Freedom of Information Enquiries (RR7) Gateshead Health
Sent: 02 September 2015 15:06
To: Robson Anthony (RR7) Gateshead Health
Cc: Harding-Private Peter (RR7) Gateshead Health
Subject: RE: QE Facilities FoI Ref. FoI 2015-136

 

Dear Anthony

 

Can you please send me the information which is to be disclosed? Without
that that information I can’t respond to this email.

 

Kind regards

Anna

 

Anna Wereszczynska

FoI Consultant | QE Gateshead

Information Department | Bensham Hospital | Saltwell Road | Gateshead |
NE8 4YL

T: 0191 445 3465 | E: [4][email address] |
[5]www.qegateshead.nhs.uk

 

From: Freedom of Information Enquiries (RR7) Gateshead Health
Sent: 26 August 2015 09:32
To: Harding-Private Peter (RR7) Gateshead Health; Robson Anthony (RR7)
Gateshead Health
Subject: QE Facilities FoI Ref. FoI 2015-136

 

Dear Peter, Anthony

 

For your information, we have received the email below from Anne Cashman.

 

Anthony, can you please let me know when you will be able to send me the
staff transfer and asset transfer information that we are happy to
disclose?

 

Kind regards

Anna

 

Anna Wereszczynska

FoI Consultant | QE Gateshead

Information Department | Bensham Hospital | Saltwell Road | Gateshead |
NE8 4YL

T: 0191 445 3465 | E: [6][email address] |
[7]www.qegateshead.nhs.uk

 

 

show quoted sections

Longworth Sharon (RR7) Gateshead Health,

Longworth Sharon (RR7) Gateshead Health would like to recall the
message, "QE Facilities FoI Ref. FoI 2015-136".

Doug Paulley left an annotation ()

The Trust has contacted us to inform us that they accidentally released a significant amount of information they were assessing in order to respond to this request, through accidentally copying in our request address. They allege that this breach contains information which when combined with other information in the public domain would enable individual employees to be identified, including their salaries. The Trust are considering making a referral to the Information Commissioner's Office as a result of this breach. I have therefore (reluctantly) hidden this response whilst the administrators of this site discuss our legal obligations in this area.

The Trust also claims that some of the information is subject to commercial confidentiality clauses in contracts with other companies; indeed that was the only reason they gave initially as to why this response should be hidden. That is not the reason I hid the response whilst we discuss, however, it was purely the alleged release of sensitive personal data that informed my decision to hide it as an interim measure.
--
Doug - volunteer, WhatDoTheyKnow.com

Freedom of Information Enquiries (RR7) Gateshead Health,

Dear Ms Cashman

 

Our reference: FoI 2015-136

 

Thank you for your comments. Please accept our apology for not providing
further information in our extension notice.

 

We have now concluded our consideration of the public interest test under
the Freedom of Information Act 2000 (FOIA). Please find our responses
below.

 

1) Copies of all papers on the subject of the establishment, management
and expansion of 'QE Facilities' that were considered at:

a) Trust Board (in public or private meeting sections)

b) Trust Board sub-committees (for example, but not limited to, the
Finance sub-committee)

c) The central management team

 

2) The relevant section from the minutes of the above meetings, recording
the discussion and any decisions made regarding QE Facilities

 

We can confirm that we hold the requested information. This information is
exempt under sections 43(1) which applies to trade secrets, and 43(2) of
FOIA as its disclosure would prejudice the commercial interests of
Gateshead Health NHSFT Group (the Group).

 

QE Facilities Limited (QEF) is a wholly owned subsidiary of Gateshead
Health NHS Foundation Trust (the Trust) and part of the Group. QEF has
been set up primarily to provide building, engineering, maintenance,
cleaning, security and waste disposal services for the new Emergency Care
Centre building and the rest of the Trust site within time. The
outsourcing of estates and facilities management services to a company
wholly owned by the Trust will provide a number of significant financial
advantages and a greater flexibility to pursue a range of new
opportunities in the future.

 

By establishing QEF we have effectively created something novel and unique
in the NHS. The requested documents provide insight into the logistics of
developing and implementing this idea. The know-how that we have gained
through this experience constitutes the Group’s intellectual property and
trade secret of QEF. QEF is now actively discussing with a number of
interested NHS trusts the possibility of selling this concept and
utilising our expertise on the mechanics of putting it into practice on a
consultancy basis. Disclosing this valuable commercial asset into the
public domain would be detrimental to QEFs consultancy aspirations.     

 

 

Background information

 

The Trust’s unremitting focus has been on high quality and outstanding
patient care and we remain one of the very few trusts in the country who
are consistently rated as band six – the best possible score – by the Care
Quality Commission. However, finances across the whole of the public
sector continue to be stretched. Like many other NHS organisations across
the country the Trust is facing an increasingly challenging financial
landscape resulting from an unprecedented increase in demand for our
healthcare services combined with raising costs of providing care and flat
funding.

 

Nearly all NHS trusts reported 2014/15 financial results worse than
forecasted, and around 72% of NHS foundation trusts have reported a
financial deficit for the financial year of 2014/15. Higher deficits are
expected in 2015/16. We face the same difficulties, with a deficit of £3.4
m posted for 2014/15.

 

Our number one priority is to continue to provide outstanding healthcare
to all our patients, sustainable both clinically and financially in the
longer term, so that we remain a high performing, high quality healthcare
provider. This task is very challenging and calls for innovation,
creativity and transformation. The devolvement and implementation of the
concept of a separate facilities and estates management company, which
will bring in substantial savings and create income generating
opportunities for the Group, is one of the ways in which we responded to
this call. As QEF is wholly owned by the Trust, not only savings made
directly by the Trust through the outsourcing of the back office services
to QEF, but also profits generated by QEF will ultimately benefit our
patients, which is the principle underpinning the concept.

 

In the current very difficult economic climate QEF will provide a number
of real and tangible financial benefits to the Trust. The Trust has
managed to save jobs of staff that otherwise might have to be made
redundant. A number of staff from the Trust transferred successfully to
QEF in December 2014, and it is anticipated that around 400 staff will
move over around November 2015 with their existing NHS Agenda for Change
terms and conditions of employment protected.

 

The Trust has recently reclaimed £3.5m in tax recovered VAT and is
projected to continue making annual tax savings. As part of the tax refund
application process,  HMRC have inspected all Board papers falling under
the description in this request. That saving was invested in the brand new
£32m Emergency Care Centre which is now providing urgent medical care for
the residents of Gateshead and beyond  with some of the most modern
facilities in the country. The new building completely changes the way
patients are cared for during an emergency care episode by bringing
together a wide range of services including A&E, medical assessment,
urgent children’s services, a walk in centre and GP services. This
strategic investment is expected to improve our finances over the longer
term.

 

Being a non-NHS body, QEF is also designed to generate income by offering
estate and facilities services (including building, engineering,
maintenance, cleaning, security and waste disposal) and consultancy
services to other organisations.

 

 

Public interest test

 

We recognise that there is a public interest in the transparency and
accountability of the Trust. Disclosure would shed light on the decision
making process behind the establishment of QEF and demonstrate that tax
payers’ money is being managed wisely to the benefit of our local
community.

 

We believe that by providing the background information above and
disclosing the cost, staff and asset transfer information below, we have
met that requirement to a significant degree. Further details are
available in our recently published Annual Report and Accounts 2014/15
which can be accessed online at:
[1]http://www.qegateshead.nhs.uk/trustreports.

 

There is also a public interest in ensuring that there is no unwarranted
prejudice to the commercial interests of public authorities and their
ability to deliver value for tax payers’ money. This is especially true
where these interests coincide with the public benefit in contributing to
the financial viability of the Trust and its ability to continue to
provide high quality care to NHS patients.

 

In our view it is not in the public interest to prevent the Group from
capitalising on its expertise owing to innovative thinking, and gained
through the investment made into the resources put in the development and
carrying out of this creative organisational restructure. Neither is it in
the public interest to discourage innovation at the Group by preventing it
to realise its consultancy plans.

 

Having considered the above arguments, in our judgement the public
interest in maintaining the exemptions prevails over the public interest
in disclosure of the requested information.

 

The timing of this request has been an important factor influencing our
decision. The information in question is commercially valuable and
sensitive now, when the Group still relies on the developed know-how to
offer its consultancy services to other NHS trusts. We do not suggest that
our decision-making process should be immune from public scrutiny. The
balance of the public interest is likely to shift towards disclosure with
the passage of time as the information ceases to be commercially valuable,
live and relied on. However, at this point in time we believe that the
public interest in allowing the Group to test and implement money saving
solutions and to profit from this investment for the ultimate goal of
securing more money for high quality patient care carries significantly
more weight than facilitating in depth public scrutiny of the mechanics of
the process.

 

 

3) The number and agenda for change band mix of staff who:

a) Have been subject to TUPE transfer from the Trust to QE Facilities so
far,

b) Will be subject to TUPE as a result of the proposed expanded remit of
QE facilities.

 

We have had a TUPE transfer of 54, band 2 to band 8, staff from the
Estates Department at the Trust to QEF.

 

A further circa 400 staff will be transferred as a result of the proposed
expansion. This will include portering, catering, domestic, facilities and
operations staff of all bandings within those departments. This
information is still being gathered, subject to applications for direction
orders etc., to ensure that all staff who transfer are protected and have
a guarantee that their terms and conditions, as well as pension rights
remain protected in the future.

 

 

4) Copies of any professional advice commissioned/received by the Trust
relating to the establishment of QE Facilities and its subsequent
management and expansion - including, but not limited to, tax, financial
and employment law advice from external advisors or consultants.

 

We have received advice falling under the description in your request from
Deloitte and Touche LLP (Deloitte), Personnel Projects Limited (Personnel
Projects), Bond Dickinson LLP (Bond Dickinson), and DWF LLP (DWF)
(collectively further referred to as Professional Advisers). This
information is exempt from disclosure under sections 42, 41 and 43(2) of
FOIA.

 

Main bulk of advice provided by Personnel Projects to QEF relates to the
preparation of policy documents for the inception of QEF. If you would
like access to QEF policies, please let us know and we will consider your
request afresh.

 

Section 42 (legal professional privilege)

 

Why is the exemption in section 42 engaged?

 

The requested legal advice is subject to legal professional privilege, and
therefore exempt from disclosure under section 42 of FOIA. Legal
professional privilege protects the confidentiality of communication
between a legal adviser (in this case Bond Dickinson and DWF lawyers) and
a client (in this case the Trust and QEF). There have been no prior
disclosures of this information to the world at large, and so the
privilege has not been waived or lost.  The advice is recent, live and
still relied on.

 

Public interest test

 

There is an inherent strong public interest in preserving legal
professional privilege, which safeguards the openness in communications
between a lawyer and a client, and so enables the provision of full and
frank legal advice, which is fundamental to the English legal system and
the administration of justice. It is the reliance on this essential
principle that allowed the Trust and QEF to seek full and frank legal
advice on the matters relating to QEF to ensure that fully informed robust
decisions were made.

 

There is a very strong public interest in ensuring that there is a safe
space for the Trust and its subsidiary to explore all different options
and seek full advice on all risks without fear that that this information
might be released into public domain and expose the public authorities to
risk of challenges and legal proceedings. Without that safe space the
usefulness of the legal advice would be limited, and consequently the
quality of the decision making process would be adversely affected with a
significant detriment to the patients and tax payers in general.

 

It would also have a detrimental effect on the quality of decision making
when exploring options for future initiatives that the Trust and/or QEF
contemplate at the moment or might in the future, as the Trust and/or QEF
officials would feel inhibited in their ability to explore bold ideas and
innovative solutions, and seek full and frank advice on all relevant
issues affecting such initiatives.

 

As well established in case law, at least equally strong or stronger
public interest would have to exist to override this inherent public
interest. We acknowledge that there is a public interest in transparency
and accountability in the decision making process of the Trust and that
disclosure might help to demonstrate to the public that the decision
making process was fair, informed and un-biased. However, we do not
believe that there are any special circumstances rendering this general
interest equal to or stronger than the public interest in maintaining
confidentiality of legally privileged information.

 

Section 41 information provided in confidence

 

Why is the exemption in section 41 engaged?

 

Section 41 of FOIA is engaged because the requested information had been
obtained by the Group in confidence from the Professional Advisers.
Disclosure of this information into the public domain would constitute an
actionable breach of confidence, and in our view the Group would not have
a public interest defence to such a breach. The exemption in section 41 is
absolute and does not require consideration of the public interest test.

 

 

Section 43(1) commercial interests

 

Why is section 43(1) engaged?

 

The content of the advice provided by the Professional Advisers
constitutes their trade secret. It would reveal their approach to advising
on similar issues and risks, which they consider a fundamental part of
their business know-how gained through a significant investment in
recruitment, training, and remuneration of staff, systems, precedents and
research. This intellectual property of the advisers is a source of
competitive advantage over their competitors. Disclosure into the public
domain would provide their commercial rivals an unfair advantage as they
could re-use their advice, documents and know-how to provide advice to
their clients unfairly benefiting from the investment made by the
Professional Advisers into developing their expertise.

 

Public interest test

 

There is a public interest in the transparency and accountability of the
Trust as discussed above in relation to section 42. However, in our
assessment there is a prevailing public interest in ensuring that trade
secrets of professional advisers are protected, and that when providing
advisory services to public bodies they need not fear that advice provided
to their clients in confidence would be released into the public domain.

 

 

Section 43(2) commercial interests

 

Why is section 43(2) engaged?

 

The advice obtained from the Professional Advisers has substantively
contributed to the know-how of the Trust and QEF as discussed in response
to points 1 and 2 of this request. It also features in the content of the
requested minutes and papers. Therefore, disclosure of this information
would have the same effect as outlined in the first part of this response.

 

In addition, release of commercially sensitive confidential information of
the Professional Advisers, would be likely to damage the business
reputation of the Group and the trust that the Professional Advisers have
in the Group. As a result they would be less likely to provide their
services for the Group or more cautious and restrained in the formulation
of their advice, which would render such advice less robust. This in turn
would be likely to translate in less well informed decision making process
of the Trust/QEF, which ultimately would be likely to prejudice the
Group’s ability to achieve value for money.

 

Public interest test

 

The public interest arguments in favour and against disclosure in relation
to the Group’s know-how are as set out in the first part of this decision.

 

In regards to disclosure of commercially sensitive information of third
parties, there is a public interest in allowing the public to scrutinise
whether decisions affecting public money and public services are made
based on well informed advice. However, there is a stronger public
interest in ensuring that the Group is able to preserve its business
reputation and the confidence that private sector suppliers have in the
Group, which is essential to its ability to deliver the best possible
value for tax payers’ money.

 

Having considered the public interest test, our decision is to withhold
the requested information.

 

 

5) A summary of the cost of professional advice commissioned/received by
the Trust relating to QE Facilities.

 

Bond Dickinson LLP £53,773

DWF LLP about £4,000

Deloitte and Touche LLP £49,540

Personnel Projects Limited £14,300

 

 

6) Details of and estimation of value of the equipment, property and
facilities which the Trust has transferred to, or entered into lease or
other commercial agreements with, QE Facilities.

 

Gateshead Health NHS Foundation Trust
QE Facilities
transfer of
assets.
£
Building
remaining cost                208,636
Retail Leasing             2,250,000
Capital
Equipping                432,152
Land                193,492
From Build
Cost Schedule          23,653,343
Total          26,737,623

 

 

We hope that you will find this response helpful. If you have any queries
about this email please contact us quoting the reference number above.

 

Yours sincerely,

 

The Information Governance Team

Gateshead Health NHS Foundation Trust

 

Your appeal rights

If you are dissatisfied with the handling of your request, you have the
right to ask for an internal review by email at [Gateshead Health NHS Foundation Trust request email],
or letter to Information Governance, QE Gateshead, Information Department,
Bensham Hospital, Saltwell Road, Gateshead, NE8 4YL. Any review request
should be submitted within two months of the date of this response. Please
remember to quote the reference number above in any future communications.

 

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted at: Information
Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF.

 

References

Visible links
1. http://www.qegateshead.nhs.uk/trustreports

Ganesh Sittampalam left an annotation ()

Having considered the Trust's representations, we have decided to unhide the mistaken release above (https://www.whatdotheyknow.com/request/q...) as we consider that processing any personal data in the response is necessary to increase the transparency of contract payments made by the public sector.

Ganesh - WhatDoTheyKnow volunteer