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.

The Cara Davani Saga - objections to Brent’s 2015/16 Accounts to be investigated

Guest blog by Philip Grant
 

In August 2016, Wembley Matters reported that Cllr. John Warren (as a local elector, not as a councillor) had asked Brent’s Auditor to make a Public Interest report about items of expenditure in the Council’s 2015/16 accounts relating to Cara Davani and the Rosemarie Clarke Employment Tribunal case. LINK  I added a comment to that blog, saying that I had also exercised my right to object to those accounts, and I understand that there were four other Brent electors who objected, with five of the six objections relating to Brent’s £157,610 pay-off in June 2015 to its former HR Director, Cara Davani, and related matters.

I know that a number of interested readers may be wondering “what has happened about this?” Until a few days ago, the answer appeared to be “not very much”, but in the past few days I have received a letter from the Auditor at Messrs KPMG, so can now give you an update. The letter was marked “Private and Confidential”, so I will not attach a copy, but as some of the points are already in the public domain, and others are just an outline of procedure, I am happy that I can share the following information with you.

The Auditor wrote on 14 November to formally accept that my objection of 10 August was validly made under section 27 of the Local Audit and Accountability Act 2014. The letter confirmed that I had set out a case which could give grounds for the Auditor to apply to the Court for a declaration that Brent Council made unlawful payments during 2015/16 in respect of: 

a) A proportion of the total amount paid by the Council in the out-of-court settlement of the Rosemarie Clarke case, which should have been the personal liability of the second respondent in that case, Cara Davani (the Council’s former HR Director). 

b) A proportion of the Council’s legal costs (both external and internal) in the Rosemarie Clarke case which should have been recharged to, and paid by, Cara Davani personally, as a separate respondent in that case. 

c) The whole of the £157,610 “compensation for loss of office” paid to Cara Davani, and shown as part of the Senior Employees’ Remuneration to ‘Human Resources Director (to June 2015)’ at Note 30 to the Council’s draft accounts. 

d) The whole of any amount paid around June 2015 as an “Exit Package” to Andrew Potts, the Council’s former Principal Lawyer (Employment and Education) or similar title, which is included in the amounts for either ‘compulsory redundancies’ or ‘other departures agreed’ at Note 32 to the Council’s draft accounts.

The Auditor also accepted that, if his enquiries led him to the view that these payments were not unlawful, I had validly requested that he should issue a public interest report in relation to matters a) and c) above.

The Auditor’s letter also set out how his firm’s enquiries would proceed, in respect of my objection (and other valid objections) to Brent’s 2015/16 accounts, saying they would now:

■ ask the Council for their response to the objection;

■ ask the Council for documents relevant to the objection;

■ collect the documents that we think will help me make a decision about the objection; 

■ give you and the Council the opportunity to make further comments on the objection;

■ make any further enquiries we consider to be appropriate;

■ if appropriate, tell you and the Council our provisional findings and views; and

■ decide the objection.

The letter concludes by saying:

‘While this marks the start of the formal objection process, we encourage you and the Council to discuss the issues raised to see whether you can come to an agreement. Please also note that you are free to withdraw your objection at any time.’

Readers who have followed this saga will realise that I am unlikely to withdraw my objection without seeing convincing evidence that the payments involved were properly made. I would, however, be willing to discuss these issues with the Chief Executive / Chief Finance Officer of Brent Council, if they are willing to make available (“in confidence”, if necessary) the information and documents needed to ensure that any such discussion could be meaningful.

I am aware that Cllr. Warren has received a similar letter from the Auditor in respect of his objection, but I do not know whether any of the other three local electors who also sent objections to payments made by Brent to, or on behalf of, Cara Davani have also heard from Messrs KPMG. It would make sense if the local residents involved could co-ordinate their dealings with Brent Council (if there are to be discussions). If you are one of those objectors, please contact me (via Martin, if necessary, see email address under “Guest Blogs” in right-hand column), or at least put a comment with your views below. Thank you.

Philip Grant

Brent Council External Audit certificate delayed while objections to accounts are investigated

The report of the external auditors, KPMG, is tabled for the Brent Council Audit Commitee on Thursday September 22nd, 7pm, Brent Civic Centre.

KPMG note on page 9 LINK:

In order for us to issue an audit certificate, we are required to have completed all our responsibilities relating to the financial year. We are not in a position to issue our audit certificate with the audit opinion as we have received six objections to the accounts from local electors.

We are currently in the process of considering these objections and assess the work we need to fulfil our statutory duties.

It is likely that some of these objection relate to the Council's £157,610 pay-off to ex-head of Brent Human Resources, Cara Davani. The auditor was asked to make a public interest report under Section 24 of the Local Audit and Accountability Act on the payment LINK:

This is the submission by Cllr John Warren:

I seek your consideration of a public interest report in respect of the Accounts of the L.B.of Brent for 2015/2016...........

1. I am on the electoral register in the Brondesbury Park  Ward in HBP4.

2.” Why you are objecting and facts on which you rely.”

I am objecting that you have not issued a report on what I shall refer to as the “ Rosemarie Clarke saga .”.......and put forward the following....

(a) L.B.Brent has suffered a significant financial loss due to mismanagement,incompetence,and decision - making at the highest level that fail totally to pass ANY test of “ reasonableness.”
(b) The cumulative cost of this saga totals in excess of £1 m. for 2014/2015 and 2015/2016.
(c) There is considerable interest in this saga from Brent residents.
(d) As admitted by L.B. of Brent, here has been considerable reputational damage to the Council as a result of this saga.

3. “ Details of any matter you think the external auditor should make a public interest report about .”.......

(a) The saga as referred to above with specific reference to .....

•          did the personal relationship between Christine Gilbert ,former Chief Executive ,and Cara Davani have any effect on the decision - making  in this saga?
•          did the fact that  the two afore-  mentioned individuals had previously worked together at both Ofsted and L.B. of Tower Hamlets play any part in the decision - making in this saga?
•          was it ,in  any way possible, “ reasonable “ for Ms Gilbert NOT to  initiate a disciplinary process against M/ s Davani in the light of the brutal judgement and comments by the Judge in the  Employment Tribunal case  at Watford - 3302741/2013?
•          did “ unreasonable “ decision - making in this saga mean that Brent Council should never have been placed in the position of having to agree an exit payment to M/ s Davani of £157,610 - as per 2015/16 accounts?
•          was it a proper use of public monies for L.B.of Brent to pay the costs/ damages awarded personally - as a defendant- against M/ Davani?

4. “ What you would like the external auditor to do ?”

I should like you to issue a public interest report on the reasonableness or otherwise of the decision - making in the “ Rosemarie Clarke saga. “..... because of the significant cost in money terms, Council reputational damage  and Brent  staff- relations ....
•          was it reasonable to take disciplinary action in the first place against Ms Clarke?
•          was it reasonable to appeal the Tribunal verdict in the light of the Judge’ s comment that “ Brent had no reasonable prospect of success ?”
•          was it reasonable not to take disciplinary action against Ms Davani in the light of the Tribunal judgement?
•          was it reasonable for Brent to pay all Ms Davani ‘ legal costs and damages personally awarded against her?
•          was it reasonable for Brent to make the exit payment of £157,610 to Ms Davani?

Brent Council and Cara Davani - at last some answers, but ...

On 21 July we published a guest blog from Philip Grant LINK , which asked some questions of Brent Council and its Leader, Cllr. Muhammed Butt, about the pay-off last year to its former Director of Human Resources, Cara Davani.

I am pleased to say that, unlike her predecessor Christine Gilbert last year, Brent Council's Chief Executive, Carolyn Downs has written to provide brief answers to the four points which Philip raised. A copy of her letter is shown below, and readers are invited to consider the information given, and to add any comments they wish to arising from what we now know about the pay-off arrangements.

Warren seeks details on source & content of Brent's legal advice on Cara Davani

Following the debate at Brent Council yesterday evening LINK when Cllr McLennan said the Council's decision not to discipline Cara Davani and to give her a pay-off was based on legal advice, Cllr John Warren has made the folowing request:

You are aware of my concerns over the pay- off to Ms Davani. I make a formal request for details of the firm that gave advice to Brent to settle on  a £157,610 pay -off.

I also seek details of this advice.

If you are unable to give me this information would you please take this as a freedom of information request.

 I just find it extraordinary that the evidence against Ms Davani at the Employment Tribunal was not deemed sufficient to pursue disciplinary action against her.

 I have also received the following comment from a reader.

How could Cara Davani (CD) claim constructive dismissal as she had already been found guilty at a tribunal of bullying and harassment?

How could she be entitled to statutory redundancy payments as she was not directly employed by the Council / paid through payroll as an employee for more than two years?

Had she been employed by the Council for more than two years and not been found guilty at a tribunal for matters potentially deemed to be gross misconduct, whereby she could have been dismissed, she would only be entitled to statutory redundancy pay,  which I understand to be one week's pay per year of service.

It beggars belief that Brent should pay CD this extortionate amount of money. Perhaps Brent should consider sacking, or suing their lawyers. 

Brent Council 'cannot legally disclose any details' of Cara Davani leaving arrangements

Question to Brent Council Press Office on July 27^th

I would appreciate answers to the questions below in response to concerns raised by residents on the Wembley Matters blog.

1. Can Brent Council confirm that there has not been, and that there will not be, any financial payment by the Council to Cara Davani in connection with her leaving the Council’s employment as Director of HR and Administration, other than her normal salary payment up to 30 June 2015?   YES or NO.

2. Can Brent Council confirm that it has not agreed, and will not agree, to pay any award of compensation, damages or costs made against Cara Davani personally, as a separately named respondent from Brent Council, in any Employment Tribunal or other legal proceedings in which she and the Council are named parties?   YES or NO.

Many  thanks,

Martin Francis

Answer from Brent Council Press Office July 29^th

Dear Martin,

The council cannot legally disclose any details of arrangements relating to Ms. Davani’s departure.