Brent Council and Cara Davani – when (if ever) will we really know what happened?

 

Brent and Kilburn Times June 30th 2016

Guest blog by Philip Grant

Cara Davani – didn’t she leave Brent Council two years ago? And it was a year ago that the Council finally admitted that she had been given a “pay-off” (of £157,610). Surely the enquiry into this must have been sorted out by now? I’m afraid not.

When I last gave an update about “progress” on the investigation of objections to Brent’s 2015/16 accounts LINK we had been told by the Auditor that he anticipated sharing material documents with the objectors by the end of June. When the agenda for Brent’s Audit Advisory Committee meeting on 26 June appeared on the Council’s website,  KPMG’s “External Audit Progress Report” said that they expected to share the documents, and other material, ‘in July’.

As the Auditor had agreed to share those material documents (which he received from the Council in mid-December) with the objectors, and we had been expecting to get them early in 2017, I asked to speak about this item on the agenda for Monday evening’s meeting, and the committee Chair (David Ewart, an independent member) agreed in advance that I could. I hope that Martin will be able to attach the text of what I said to this blog, so that you can read it in full if you wish to. There were two points that I wished to raise with the committee, and the Chair asked me to deal with them separately. 

The first was the objectors’ disappointment with the lack of progress in KPMG’s enquiries, and our concern that the investigation process might have been changed, without explanation. We were originally told that we would have the chance to make further comments before the Auditor reached any ‘provisional findings and views’. The latest progress report spoke of sharing ‘our provisional view and material documents’ at the same time. I asked the committee to invite the Auditor to clarify the position, and to encourage him to provide a timetable for the remaining steps in his investigation, through to his final decision on the objections.

The Auditor, Andrew Sayers, did not seem to accept that there was any real change from what his predecessor had set out in November 2016. He thought that knowing what his provisional views were would help us and the Council when he shares those views and material documents with us. He still wants any further comments from us, and assured the meeting that his provisional views will be open to change in the light of any further comments and evidence he receives. On how long it was taking, his response seemed to be that he had to do his job properly [I would agree that he should, but does it really need to take so long?]. 

The Auditor seemed to suggest that the material would be shared in about six weeks (so August, rather than July?), but said the timetable after that would depend on what further comments he receives and what further investigations he may need to make, so he could give no indication of when his final decision might be published.

There were murmurings from the committee over how long his investigation was taking, and what it would cost (Mr Sayers did not know how much it had cost so far, but he would write with a figure that could be passed on to committee members). Cllr. Davidson, in particular, was concerned over the costs, and appeared to suggest that KPMG could be carrying out unnecessary work, just to increase their fees.

My second point, asked the committee to recommend that Council Officers consent to Mr Sayers sharing the legal advice with us "in strict confidence". The papers around that advice comprise very ‘material documents’, as they provide the only evidence in support of Brent’s decision to make the payment to Ms Davani.

The Chair asked Brent's Chief Legal Officer, Debra Norman, to address them. She told the committee, effectively, that "Legal Privilege" was a fundamental principle that should never be breached. She did not appear to consider whether, in the particular circumstances of this investigation, refusal by the Council to allow the objectors access to the documents, in strict confidence, might appear to be unfair.

The Chair asked Mr Sayers whether the lack of consent from the Council was "impeding" his investigation, and the Auditor said that it was not, although it might mean that he had to take legal advice himself over whether to disclose certain documents to the objectors. I am not sure whether committee members realised that this would mean additional costs to the Council for the investigation.

I was allowed a brief reply, but like Mr Sayers, I had to say that I could not disclose the full nature of the allegations in the objection, but that they did involve matters which were 'contrary to law', and that this was more than a possible query over whether a QC's advice was correct.

There was no real discussion or vote on what action the committee should take over my second point. It was almost like a shrug of the shoulders to say "well, we can't go against the advice of the Chief Legal Officer".

I was probably naïve to think that the Audit Advisory Committee might, just might, be persuaded to recommend that the legal advice, which the Council claims as justification for the £157,610 “pay-off” to Cara Davani, could be shared with the objectors. But at least I tried to move things forward towards getting this long-running matter resolved, and the minutes of last Monday evening’s meeting will hopefully record the main points of what was said.

So, Wembley Matters readers, and the rest of Brent’s citizens, will have to carry on waiting for details of why the payment was made, if that is found to be different from the Council version(s), to be officially revealed. You can be sure, however, that the five local electors who objected to Brent’s 2015/16 accounts will do their best to see that the truth comes out, eventually.

Philip Grant.

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.