Brent’s 2015/16 accounts – progress on objections to the Cara Davani “pay-off

Guest blog by Philip Grant

As it is a couple of months since I wrote about the latest developments in “the Cara Davani Saga” LINK , I thought that the many “Wembley Matters” readers who are interested in this case might like an update on what has been happening.

The Auditor at Messrs KPMG dealing with the Council’s accounts to 31 March 2016 is still considering the objections from five local electors against Brent’s payment of £157,610 to its former Director of HR, so I cannot pass on any details which are still confidential at this stage. However, I hope that they will eventually come into the public domain when the Auditor has completed his enquiries.

In my guest blog of 19 November I said that I was willing to discuss the issues raised with Brent Council, along with the other objectors, as encouraged to do by the Auditor. I did ask to see a number of documents relevant to the payments I had objected to, although my request was rejected, in respect of most of them, by Brent’s Chief Finance Officer. Despite this, along with three other objectors, I met with him and the Council’s Chief Executive on the evening of 6 December 2016. The fifth objector, Cllr. John Warren, could not make that meeting, but had met with them separately earlier that day.

Although no agreement was reached, the discussions took place in a constructive atmosphere, and helped both sides to understand the other’s position. The objectors explained to Ms Downs and Mr Hall why they felt that the £157k paid to Ms Davani was wholly inappropriate expenditure for the Council to incur, and that this was money which should instead have been used to provide services for people in Brent.

The Chief Executive agreed that the whole episode did not reflect positively on the Council, and she did not dispute that elements had been poorly managed, but said that steps have since been taken to ensure that the organisation no longer operates in this way.

Much of the meeting was spent going through the list of documents I had requested to see, and discussing points arising from these. Mr Hall explained that the Council felt it could not allow the objectors to see any legally privileged advice or confidential documents (which was most of them!). However, the auditor would be provided with all of the information that is available, so that he can reach a decision based on that evidence.

Although we could not see the documents, the discussions did provide some interesting information.

We asked for more information about the circumstances which gave rise to Cara Davani leaving Brent. When Ms Downs provided a brief outline of the grounds on which the former HR Director claimed she was entitled to compensation from the Council, the objectors expressed their incredulity. I am sorry that details have to remain confidential for now, but I can say that we asked Ms Downs whether she was joking, and she said that she was not!

One surprising fact was that for many items I had asked to see, no documented evidence had yet been found, even though it should have existed. Ms Downs agreed it was unthinkable that key decisions, such as whether to take disciplinary action against Cara Davani in 2014 or whether to make a settlement agreement with her in 2015, had not been discussed with the Council Leader by the then interim Chief Executive, even though the final decision would be for Christine Gilbert to make.

The absence of any evidence of those discussions suggests that either they were entirely verbal (with no written note made of them), or that they had “off the record” written communications, or even that evidence was deleted or shredded before Ms Gilbert left Brent Council. [Dear Reader: If you can provide any definite information (not just speculation) on this matter, and are willing to share it not only with me, but also with Carolyn Downs and the Auditor, it would be helpful if you could do so, please.]

Following the meeting, Brent Council sent the Auditor its formal response to our objections on 14 December. The Council maintains its view: ‘… that the settlement payment to the former HR Director was made lawfully and that, under the circumstances that existed at the time it was agreed, it was the most appropriate way forward in order to protect the Council’s financial position.’ It recommends to the Auditor ‘… that you should either dismiss the Objections, or at any rate conclude that you should take no action in respect of them.’

Brent’s response concludes by referring to a separate letter sent to the Auditor, attaching the confidential and legally privileged documents, and makes clear that the Council does not consent to these being disclosed to anyone else (i.e. the objectors!).

I wrote to the Auditor about these documents, pointing out that he had invited the objectors to make further comments, and that it was unfair to expect us to do so without being able to see the evidence on which those comments needed to be based. Just before Christmas he did reply to say that he would share with us all of the documents which he considered material to his decision. We have not seen any of these documents yet.

The sticking point is over whether the objectors should be allowed to see the legal advice, which appears to provide the sole justification for the Council making the £157k payment to Cara Davani. The Auditor could not force Brent to disclose that advice to him, but the Council did so voluntarily, and there is a provision which allows the Auditor to disclose information: ‘…except where the disclosure would, or would be likely to, prejudice the effective performance of …’ his functions as Auditor.

As well as giving an assurance that I would keep the information confidential, I have pointed out that disclosing the legal advice would actually assist the effective performance of his function as Auditor, by giving me the opportunity to either satisfy myself that the legal advice, and actions taken by the Council as a result of it, were lawful, or to explain to him why the evidence supported my objection that the payment involved was unlawful.

What I can tell you about the legal advice is that, although it is said to have been given by an employment law QC, it was not a written legal opinion from him, but a note made by a Brent Council officer of what the QC is claimed to have said. That advice was summarised by the Chief Finance Officer to Brent’s Audit Committee on 30 June 2016, as recorded in the minutes of that meeting:

‘Conrad Hall explained that in May 2015 advice had been sought from a leading QC specialising in employment law.  The QC had been recommended by the Council’s Monitoring Officer from a framework contract operated by the London boroughs legal alliance.  His advice, in conference, had in summary been that the Council lacked good grounds to conduct a fair dismissal of the Council’s former HR Director for a variety of reasons, and had it attempted to do so it was likely to have been found to have acted unfairly by an Employment Tribunal.  Conrad Hall further advised that had such a course of action been attempted then the Council had been notified that a substantial claim would have been submitted by the former HR Director and that under those circumstances the decision had been taken to seek to settle matters by way of a compromise agreement.’ 

Once we have been given the opportunity to see all the documents which the Auditor does disclose to us, all five objectors can submit their further comments. One of the points that I am likely to make is that there appears to be no evidence that Brent dismissed, or even attempted to dismiss, Cara Davani, so how could the Council be ‘… found to have acted unfairly by an Employment Tribunal’ for something that it didn’t do?

I’m afraid that readers will have to wait for the Auditor to complete his enquiries before we discover the outcome of this final attempt to get something done about what many of us feel was an injustice. I hope that the result will be worth waiting for.

Philip Grant.