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Legal Services Competence - correspondence


Attention Fran Beasley, LBH Deputy Chief Executive
17th February 2010

Concerns about LBH Legal Services and Democratic Services Departments

I understand that you are responsible to the Chief Executive for both LBH’s Legal and Democratic Services departments.  The purpose of this e-mail is to draw your attention to concerns I have about the efficacy of these departments in regard to their knowledge of and correct application of the law as well as Legal Services’ ability to deal with correspondence.   These concerns are based on the following cases.

Lack of knowledge of, and failure to correctly apply the Law

Environmental Information Regulations (2004)

LBHs FOI Officer stated in December 2009 that “ … it is only until recently that we are getting a clear picture of the Scope of EIR and what is considered to be “Environmental Information”.   This meant that almost 5 years since these regulations came into force on 1st Jan 2005 Legal Services did not properly understand their scope. Environmental information is however clearly defined in Part 1 (2) of the regulations.   See supporting note (1) below

Local Government and Public Involvement in Health Act 2007  (S 74 and Schedule 4 - new arrangements for executives: transitional provision)

25th Sep 2009  LBH Head Of Democrtic Services stated:  “It is not entirely clear from the provisions of the 2007 Act as to whether consultation with the public is actually required”.  However Section 64 33E (6) states “Before drawing up its proposals, the local authority must take reasonable steps to consult the local government electors …..”  Two years after the Act came into force in October 2007 Democratic Services were therefore unaware of one of its key provisions. (2)

Local Government Access to Information Act 1985 & Article 13.02  (page 66) of the Borough’s constitution

The public  were unlawfully excluded from  part of North Planning Meeting of 9th Dec 2008 in contravention of the Act / Borough’s Constitution. To comly a resolution should have been passed to exclude members of the public and,  if the public interest test was applied, officers did not give their reasons to the Committee for deciding that the public interest in maintaining the exemption outweighed the public interest in disclosing the information. (3)

Freedom Of Information Act and Environmental Information Regulations

The Information Commission have expressed the following concerns over LBH’s complaince with these Acts and their associated codes of practice:

Not  providing a full response to a requests
Not providing details of its complaints procedure
Insufficient staff training
Responses made outside the 20 day time limit
Failure to confirm or deny information is held
Operating a multistage complaints / internal review  procedure
Length of time taken to conduct its internal review procedure
Falure to complete internal reviews
Allocation of sufficient resources to request handling
Not including EIR in its procedures

Refer to (4) below

Failure to deal appropriately with correspondence

Correspondence with Information Commissioner

On 3rd June 2009 an ICO Enforcement Officer wrote to the LBH Borough Solicitor with these concerns and seeking assurances about future practices. No acknowledgement was sent and Legal Services only replied to the issues raised on 15th October after 5 reminders from the ICO.

The ICO wrote again on 27th October to the LBH FOI Officer. Again LBH failed to to acknowledge the letter. The ICO were obliged to send a reminder on 9th December after which he eventually replied on the 15th December. (4)

Contact details for Principal Corporate Lawyer

On 26/01/10 I e-mailed the Borough Solicitor asking, inter alia, for the name and e-mail address of LBH’s Principal Corporate Lawyer.  LBH’s FOI Officer replied the next day but did not give me this information. On 10th Feb I e-mailed the Borough Solicitor again specifically asking for the information.  I have received  neither the information or any acknowledgement of my e-mail from him.

Colnbrook Bypass Issues

Please refer to the e-mail attached to my covering e-mail from the Borough Solicitor dated 28/08/09 promising a full response to issues I had raised with LBH’s Chief Executive.  No further communication has been received from him on this matter.


Supporting Notes

(1) See letter of 15th Dec 2009 from LBH FOI Officer to Information Commission at  www.hillingdon-watch.org.uk/html/correspondence.html

(2) See e-mail to me from Head Of Democratic Services dated 25th Sep 2009 “New Governance Consultation” at 
www.hillingdon-watch.org.uk/html/documents1.html#FromLWhite  and
www.hillingdon-watch.org.uk/html/documents1.html#ComplaintToHDunnachie02112009   and 
for the EIR
www.statutelaw.gov.uk/legResults.aspx?LegType=All+Legislation&title=Environmental+Information&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&TYPE =QS&NavFrom=0&activeTextDocId=945378&PageNumber=1&SortAlpha=0

(3) See www.hillingdon-watch.org.uk/html/unlawful_exclusions.html

(4)  See correspondence between LBH and ICO at www.hillingdon-watch.org.uk/html/correspondence.html


Peter Silverman
www.hillingdon-watch.org.uk
 

From: Hillingdon-Watch [mailto:petersilverman@hillingdon-watch.org.uk]
Sent: 04 March 2010 15:11
To: Fran Beasley (LBH Deputy Chief Executive)
Subject: Concerns about LBH Legal Services and Democratic Services Depts.

Ms Beasley,

Thank you for your letter of 26th Feb in response to my e-mail of 17th Feb.

You said you had reviewed the issues raised in detail and, to the best of your knowledge, most had featured in previous complaints, which had been responded to. 

Let’s look at each of the issues and see whether they had featured in previous complaints and if so whether a response had been made:


Lack of knowledge of, and failure to correctly apply the Law

Environmental Information Regulations (2004) – law not understood.   Not featured in previous complaints.

Local Government and Public Involvement in Health Act 2007  (S 74 and Schedule 4 - new arrangements for executives: transitional provision) – law not understood.    This had been raised in a complaint to Hugh Dunnachie but his response did not address the issue.

Local Government Access to Information Act 1985 & Article 13.02  (page 66) of the Borough’s constitution   Unlawful exclusion of public.  This had been raised with Hugh Dunnachie who did address the issue. However but he did not reply to my follow e-mail.

Freedom Of Information Act and Environmental Information Regulations  Information Commissioners concerns over compliance by LBH.   Not featured in previous complaints


Failure to deal appropriately with correspondence

Correspondence with Information Commissioner   Not featured in previous complaints.

Contact details for Principal Corporate Lawyer  - Borough Solicitor’s failure to acknowledge request.   Not featured in previous complaints.

Colnbrook Bypass Issues – Borough Solicitor’s failure to  provide promised full response.  You are now chasing this for me. Many thanks.


As you see of the seven issues raised only two had been responded to.

I hope this is of help.

Kind regards

Peter Silverman
www.hillingdon-watch.org.uk






From: Hillingdon-Watch [mailto:petersilverman@hillingdon-watch.org.uk]
Sent: 06 May 2010 17:21
To: Fran Beasley (LBH Deputy Chief Executive)
Subject: Concerns about LBH Legal Services and Democratic Services Departments

Ms Beasley,

Please refer to my e-mails of 17th February and 4th March on this subject. In them I gave examples of these departments’:

Lack of knowledge of, and failure to correctly apply the Law, and  
Failure to deal appropriately with correspondence.


I now wish to site two further examples of the latter failing:

Letter from Borough Solicitor, Raj Alagh dated 4th May 2010 (a copy is attached)

On 28th Aug 2009 Mr Alagh, THE Borough Solicitor, had promised to respond to my e-mail to Hugh Dunnachie of 26th Aug 2009 concerning “A4 Colnbrook Bypass & Speedbird Way”.  His failure to respond was drawn to your attention in my e-mail to you of 17th February 2010. Thank you for progressing it with him. However, it still took him a further two and a half months to reply - making a total of 8 months altogether.

Under point 1 I had asked about the cleaning of “Speedbird Way” (a private road off the Colnbrook Bypass). However his reply referred to the fact that the “Bypass” was being cleaned fortnightly. No reference was made to “Speedbird Way”.  He also wrote “see my letter of 18th August 2009”.  But he did not write to me on that date.  It was Mr Dunnachie who had written to me.

Under point 4 I had asked Mr Dunnachie if he agreed with me that, if there was correspondence with the owners of Speedbird Way, I would be entitled to see it under the Environmental Information Regulations.  In reply Mr Alagh wrote: “Under Regulation 12[4][a] of the Environmental Regulations 2004, ...a public authority may refuse to disclose information to the extent that it does not hold that information when an applicant's request is received”.  While this is factually correct it does not address the point raised. 

Correspondence between LBH and the Information Commissioner

In my e-mail of 17th February I highlighted the failure of your Legal Dept to deal in a timely manner with letters from the Information Commissioner’s Enforcement Team  in 2009.   I can now report to you that this problem has continued into 2010. 

The ICO wrote to Mr Ingles, your FOI Officer on 11th January.  As has become customary not having received a reply, they chased him on 18th February.  His reply was eventually sent on 4th March. 


Ms Beasley, I hope this  is of help.

Peter Silverman
www.hillingdon-watch.org.uk    
20 Kingsend, Ruislip, HA4 7DA
01895 625770




Mr P Silverman
20 Kingsend
Ruislip
Middlesex HA4 7DA

Our Ref:3E/04/RA/HH/PS1

4th May 2010


Dear Mr Silverman
 
Re: Concerns about LBH Legal Services and Democratic Services Departments
 

I write with reference to an e-mail which you sent to Fran Beasley, the Council's Deputy Chief Executive, on 17th February 2010 in which you raised various concerns about my Service and Democratic Services.
 
I note that Ms Beasley sent you a composite response on 16th March 2010 but she did suggest in the final part of her letter that you would be sent a separate reply in relation to the Colnbrook Bypass issues.
 
Ms Beasley has asked me to respond to you on her behalf and in doing so, I have carefully reviewed the exchange of correspondence which you had with the Chief Executive back in 2009.
 
I had asked my Principal Corporate Lawyer, Mr Simon Jones, to write to you in response to your e-mail dated 26th August 2009 but it appears that this letter was never in fact sent to you. I take full responsibility for this and would apologise to you for this oversight.
 
I have looked at the letter which Mr Jones had prepared and I am extracting from it, and am setting out below, the responses to the various matters which you had raised in your 26th August e-mail. I have for the sake of convenience adopted your numbering.
 
1.In relation to your first question the answer is ''No''. The by-pass is now being litter picked on a fortnightly basis [see my letter of 18th August 2009].
 
2.12th August 2009.
 
3.No.
 
4.Under Regulation 12[4][a] of the Environmental Regulations 2004, ...a public authority may refuse to disclose information to the extent that it does not hold that information when an applicant's request is received.
 
It is a matter for you to seek your own legal advice in relation to the interpretation of this legislation and how it may affect any future requests for information that you may wish to make. However, it is my clear view that the true effect of this paragraph is that the Council may refuse to disclose the information requested by you on the basis that it does not hold that information and did not hold it at the time of your request.

Yours sincerely
 
Raj Alagh
Borough Solicitor