Muirfield Action Group lays bare derelict Angus Council case

The latest revelations on Angus Council’s presentation of its case to close Muirfield School have borne fruit. Ewan Smith of the Muirfield Action Group has today written to Jonathan Moore, Head of the Infrastructure Unit of the Scottish Government’s Learning Directorate.

Mr Moore leads the team that manage the procedures surrounding the Ministerial call-in of questionable school closure decisions by local authorities.

In his letter, the full text of which is below, Mr Smith lays out a forensically detailed and evidenced case against Angus Council.

We are aware that legal opinion is being sought today. This is being done in the eventuality of a decision against the evidence, to permit the closure of Muirfield to go ahead. The initial indications are positive with the opinion being that a very good case has been assembled.

Muirfield Action Group Letter to the call-in team

23rd January 2012
Dear Mr Moore

Schools (Consultation) (Scotland) Act 2010
Muirfield / Timmergreens Call-In

Further to my letter to the Cabinet Secretary of 17th January 2012, I would like to highlight some additional aspects of Mr Logue’s letter of 13th January 2012, which I believe are of the utmost importance.

I can now demonstrate that:

• the Muirfield condition score is an essential element of Angus Council’s proposal to close Muirfield and Timmergreen schools;
• Angus Council has failed to implement correctly the Core Condition Fact guidance in relation to the assignment of condition scores to important elements of the building, despite its statements to the contrary;
• Angus Council has failed to calculate correctly the overall condition score for Muirfield school, even on the basis of its own, incorrect, individual element scores;
• these scores were relied on by HMIE in its acceptance of the Education Benefit Statement;
• the Information Commissioner’s investigation established that despite the requirements to keep an auditable record of changes and reasons for changes to condition scores, no such records were kept;
• these are material considerations that, even ignoring all the other defects of the consultation process, render the consultation invalid.

Importance of the Muirfield Condition Score to the Proposal

Throughout this process the condition rating of the Muirfield buildings has been a key driver in Angus Council’s proposals. The proposal document itself states:

3.7 The key reasons for providing a new primary school in the West of Arbroath were (i) the deteriorating condition/suitability assessment of Muirfield and Timmergreens Primary Schools (being C/C and B/C respectively) …….

And again:

4.1.7 The overall condition of the building is poor (rated as category C) with major issues being poor quality glazing and curtain walling. Moreover, the under-floor heating has reached the end of its economic life-span, flat roofs leak and internal finishes, fitments and services are generally out-of-date and in need of replacement.

The C condition rating message was repeatedly reinforced at public and council meetings. HMIE specifically refer to the condition rating of Muirfield in their report and as the only C rated school in Arbroath, the rating will have been prominent in elected members’ minds when voting to proceed with the proposal.

How Angus Council Determines Condition Scores

Throughout the process the council has emphasised that the condition rating was carried out in accordance with the Scottish Government guidance on condition ratings. The footnote to paragraph 3.7(i) of the proposal document states:

The condition and suitability assessments are carried out by the Council in accordance with the Scottish Government guidance to provide measure of (i) the condition of the fabric of the school building and its grounds; and (ii)…

In addition Mr Logue’s letter makes repeated references to the council’s adoption of the methodology laid down in the Condition Core Fact guidance, and that “the final Condition ratings assigned to Timmergreens and Muirfield Primary School are in strict accordance with national guidance.”

Paragraphs 22, 23 & 24 of Section 3 of The Condition Core Fact: Building Our Future: Scotland’s School Estate give very specific guidance in the relation to the matters in dispute:

Condition in Relation to Lifecycle

22. Condition rating is not intended to imply any view of lifecycle stage. That is to say, it is not a measure of depreciation: the fact that the design life of a school or part of a school has expired should not automatically mean that the school is in Condition D or even C. The condition rating should reflect the state of the school in relation to its design intent. For example, the design life of a roof may have expired but if it is reliably weather tight and structurally sound, then clearly it should be allocated a rating of A or B.

Clarification of Condition Category ‘D’

23. In the past there has, in some cases, been reluctance to assign the Condition Category D, due to the perceptions that such a rating might create in others. This has been recognised as a potential cause of inconsistency in Condition Core Fact reporting across local authorities. In order to overcome this, the definition is clarified as follows. The emphasis is on the availability, performance and safety of the facility.

D: Bad – Economic life expired and/or risk of failure

24. In this instance, economic life expiry is taken to mean that the ongoing maintenance costs are not viable long term, in contrast to the cost of a major refurbishment, new build school, or provision elsewhere.

From Mr Logue’s letter it is clear however that Angus Council are assigning D condition scores to elements of the Muirfield structure not because “ongoing maintenance costs are not viable long term” but because “the design life of a school or part of a school has expired” – directly contrary to the specific requirements of the guidelines. The quotation Mr Logue uses illustrates this point precisely:

“the curtain walling (full height partially glazed screening), which accounts for a large proportion of the building’s wall area, is the original aluminium framed, single glazed type (quite typical of its era). The non-glazed panels, although insulated in part, are not ideal in terms of thermal efficiency. Internal comfort is compromised due to draughts and reduced air temperature in the vicinity of the screens from wind chill effect; especially those exposed to prevailing wind and the sea front. As the framework is aluminium the actual condition of the screens and indeed the glazing could be deemed to be satisfactory. However, when comparing the glazing/ curtain-walling with its modern equivalent it would not be practical or economically sensible to upgrade it to a satisfactory standard i.e. it would be more appropriate to replace the entire existing system. In effect the glazing and curtain walling is in fact a category D (economic life expired).”

Auditability of Records

Paragraph 21 of Section 3 of The Condition Core Fact: Building Our Future: Scotland’s School Estate requires that “Where amendments are made, this should be done in an auditable fashion, with a note stating what amendment has been made, by whom, and the reason for the change.” This requirement is repeated several times in the guidance.

That no such records exist in the case of the Muirfield survey was established by the Information Commissioner in his investigation.

In his letter Mr Logue dismisses this issue as unimportant, saying:

While I accept that it might have been helpful for a file note to have been produced to provide a record of the reasons for any amendments, the changes were made transparently as part of the overall process.

The fact that the professional opinion of the surveyor was overruled by education officials only emerged after protracted FOI requests, even now the reasons for this change are not documented. This is not a transparent process, if it was the act of the change and the reasons for it would have been detailed in the proposal paper so that consultees and elected members would be aware of it.

Visibility and auditability of such changes is crucial to public confidence in the condition rating system; without it there can be no confidence that ratings are not manipulated to further the desired outcome.

Calculation of Condition Scores

Mr Logue’s letter explains how Angus Council have downgraded the scores for the external walls, windows, doors, based on expected life rather than actual current condition, and I have shown how this conflicts with the clear methodology laid down in the guidance. Additionally the heating system has been graded as D based, according to Mr Logue, on experience of similar system elsewhere, not on the present condition and performance of the system installed at Muirfield – again in direct conflict with the guidance.

Even if these scores we allowed to stand, the calculation of the overall condition score, using Angus Council’s own weighing system is incorrect.

First we need to take the Mechanical Services elements from Angus Council’s “validated” School Estate Management Plan spread sheet:

This weighting system, which matches that laid down in the Core Fact Guidance, clearly produces an overall C not D rating.

Comparison with the Timmergreens and Wardykes equivalent suggests that there may in fact be an error in this table, since in both those schools the heat source for the electric underfloor heating is given its own weighting, and (assuming that a D is awarded) this would tend to decrease the score thus:

However, as can be seen the score remains a C.

Turning to the overall score for Muirfield Primary School, paragraph 16 of Section 3 of The Condition Core Fact: Building Our Future: Scotland’s School Estate states:

16. The numeric value for each rating is then multiplied by the weighting for the appropriate major element. Suitable weightings are given at  HYPERLINK “http://www.scotland.gov.uk/Publications/2007/03/12142801/5″ Appendix 1. The results are then summed and expressed as a percentage of the weighted score that would be achieved if all elements present in the school were in Condition A. The overall condition for the school is then given by the following percentage brackets:

More than 85%:    Condition A
85% or less, but more than 60%:    Condition B
Between 40% and 60% inclusive:    Condition C
Less than 40%:    Condition D

Before making any of the corrections discussed, the level 2 ratings given by Angus Council, aggregated according to the methodology specified in the guidance, in fact produce a B not a C.

If the correction to the Mechanical Services score shown above is made (which still does not take into account the incorrect application of life expectancy issues), then a stronger B is obtained:

If the inappropriate re-rating of the External Walls, Windows & Doors is reversed, then these results are obtained:

Accordingly, however this calculation is looked at, the rating according to the Condition Core Fact guidance should be B, not C as has been repeatedly stated by Angus Council.

Conclusion

Throughout this process Councillors and the public have been repeatedly told that the priority is to deal with Timmergreens and Muirfield ahead of others in Arbroath, with the erroneous Muirfield C condition score being given as the sole evidence for this – all other Arbroath schools being rated BC (except the denominational BB St Thomas’s).

In his letter Mr Logue repeats the council’s view that “best value” can only be obtained through the expenditure of £8m+ on a single new school to replace Muirfield and Timmergreens, yet at no stage has it been explained why this is the case – no alternatives have been properly costed (such costings have been repeatedly requested by members of the public and by councillors), no clear explanation provided for why pressing requirements elsewhere in Arbroath should be postponed to pay for it.

I have demonstrated that in addition to numerous other unsatisfactory aspects to this consultation, the key driver behind the proposal is based on a flawed interpretation of the guidance it is said to be based on, and is not supported by the detailed evidence required.

Statutory consultees and elected council members were entitled to, and did, rely on the Muirfield condition score when considering the proposal.

On this basis I contend that there are clear and pressing material considerations, within the meaning of the Act, that should lead to the rejection of the proposal by the Scottish Government.

I have no objection to the publication of this letter.

Yours sincerely
Ewan Smith
cc
Michael Russell MSP
Cllr Helen Oswald
Cllr Donald Morrison
Govan Law Centre

Commentary

Over a period of several months, Angus Council has been asked by several bodies – Muirfield Action Group, The Scottish Rural Schools Network, the Information Commission – to provide a rebuttal of this case against them. In each instance they have been unable to do so.

Given the substantial and detailed case against them made by the Muirfield Action Group, the level of evidence provided to support it and the lack of any legally adequate defence from Angus Council, it is hard to see any conceivable foundation for allowing the closure of Muirfield to go ahead.

Muirfield Action Group have shown that prescribed government procedures have been flagrantly ignored – and, worse, that what they proscribe is what Angus Council has actually done.

In the light of the evidence of this, to permit the school to be closed would be to say that these required procedures are of no account; and that the concerns which gave rise to them are equally disposable. The consequence of such a signal would be the sort of anarchy that law, regulation and guidance are introduced to safeguard against.

Muirfield Action Group have also provided to the call-in team this comprehensive and verifiable evidence to support their exposure of the fraudulent case to close Muirfield School, put forward by this council.

For the Education Secretary to set this aside and permit the closure to go ahead would be to signal that evidence is irrelevant – and yet the role of evidence is central to the very existence of law and governs the way it is administered.

A decision by the Education Secretary against the evidence would be likely to attract legal challenge.

In such an event, it is hard to see how any judge could rule against the principles of law and against the evidence in this case. Even in financial, never mind reputational terms, this would be an expensive loss.

In plain English:

• Angus Council have been proved to have doctored the facts on which their case to close Muirfield rests.
• Doctoring these particular figures left councillors and bodies like HMIE supporting the closure on a false premise. (Another dodgy dossier.)
• Angus Council has been shown (in the Eassie School affair) to have form on this dodge  – to have a well practised habit of doctoring these same facts for the same reason
• They have also been shown to have driven a 4×4 over and through government requirements on key matters and to have done as they liked – so far with impunity.

Endgame? How can it not be?

This has been an unnecessary adventure driven by ego, vanity and unchecked power, forced by these beyond the necessary probity and good practice. And the proposal did not even save money. It would have run the council into an entirely avoidable £8 million debt at a time when that is even more inexcusable than usual.

The collateral damage to the council has been substantial.

It is impossible to see how the renegade conduct of this matter by the Director of Education at Angus Council, Neil Logue, is not a case for resignation or sacking?