WHO KILLED BAMBI – REVISED AND EXPANDED

Bambi

In the early nineteen nineties the residents of Lancaster West Estate voted to use powers available through right-to-manage legislation to set up a local estate management board. This decision once taken the Council were obliged to concur, and a management agreement was duly signed by both parties in 1993 which empowered the EMB to manage this estate on behalf of the Council, who retained ownership of the properties and remained as landlords. This was, and remains, a legally binding agreement approved by and underwritten by the Secretary of State. Under the terms of the agreement the Council would retain it’s responsibility to manage the estate during the first year, while the new EMB bedded in, and was trained and familiarised with the powers and responsibilities it was about to assume. After that year the EMB was to assume full responsibility for repairs and maintenance, negotiate year on year with the Council for the capital funding needed for the necessary capital projects, and have control of the budgets it needed to discharge its’ responsibilities for the general management, maintenance and upkeep of the estate.

The handover of power never happened. Instead the Council began planning, from 1994 onwards, to create a monolithic Tenant Management Organisation (TMO) responsible for all social housing in the borough. The TMO Management Agreement was duly signed in 1996, and the Council delegated all management functions to the new body, along with the whole system of repairs and maintenance contracts that currently existed, and the property management staff and staffing structure that had formerly administered the system directly from the Town Hall. The EMB Management Agreement still existed, and the Council had no power to dissolve it, but they chose regardless to delegate all management functions to the TMO in defiance of the EMB agreement. The Lancaster West community refused to capitulate, even though the EMB had been left powerless and dependent on the TMO for the services the EMB should have been empowered to provide.

For a number of years, right through into the early noughties, the EMB continued to resist despite being constantly undermined, marginalised, and disempowered by both RBKC and TMO. They held monthly board meetings and annual general meetings at which they regularly elected volunteer board members. They were determined to hold the TMO accountable for the quality of the services they were delivering, and they succeeded to some extent, but over time the morale of individual board members was gradually eroded, as well as the morale of the Lancaster West community.

The 2005 Review and the 2006 Modular Management Agreement

In 2005 the EMB entered into a year long review with the Council of the 1993 agreement. Towards the end of this process the Council suddenly and unexpectedly re-introduced a document that the EMB had previously rejected  – a Modular Management Agreement, the format of which was favoured by the Office of the Deputy Prime Minister, the inimitable John Prescott MP. The MMA was a far weightier and more complex document than the original agreement and there was no time left to study or properly review it. Nonetheless the EMB  was  pressured into signing it, although they were given both verbal and written guarantees that the LWMA’s existing rights would not be compromised and the MMA would itself be reviewed at the earliest opportunity. This review never happened.

It was only later that EMB members came to realise the full implications of a crucial clause that had been inserted into the MMA which contradicted and fundamentally compromised the rights guaranteed by the original agreement.

Chapter 1 Clause 6.3  of the MMA stated that:

“Either party may, with the consent of the other, appoint another person to carry out management functions which are their responsibility under the Agreement and the parties have agreed to appoint the TMO to carry out the majority of the EMB’s functions”

This was a direct contradiction of the 1993 agreement which stated at clause 2.5.c that:

“The LWMA shall not delegate or assign any of the responsibilities or rights granted by this Agreement to any other organisation.”  LINK –  Principles of LWMA Agreement

Clearly Clause 6.3 in the new MMA was completely at odds with the fundamentals of the 1993 agreement.  However, the MMA did, in fact, contain a ‘safety clause’ that guaranteed that existing rights and responsibilities would not be compromised under the new agreement, and would remain unaffected: The ‘safety clause’ in the preamble to the 2006 MMA stated:

“This MMA supersedes a property management agreement made between the parties dated 1 May 1993 for the management and maintenance of the Lancaster West Estate (The EMB FOUNDING MMA).  This MMA takes effect on the date that both parties sign it but the parties’ existing rights and liabilities under The EMB FOUNDING MMA remain unaffected.”

Nonetheless the Council and TMO were determined to fully implement Clause 6.3.  They ignored the ‘safety clause’ and colluded in asserting and implementing a hardline interpretation of the MMA whereby the last vestiges of any power or influence were stripped from the EMB, leaving it completely eviscerated. Given their continual refusal over time to honour the 1993 Agreement we can only conclude that the Council never intended to empower the EMB and had signed the 1993 agreement in bad faith. This would also suggest that Clause 6.3 may have been deliberately inserted into the 2006 MMA in an attempt to legitimise that history of bad faith, disempowerment and marginalisation.

Over the next couple of years as the more competent and experienced board members resigned to move on with their lives, they were invariably replaced by inexperienced, untrained and less competent new members. Inevitably the board became demoralised and fractious and began to disintegrate.

The Arvinda Gohil Affair

In the Spring of 2009 after the EMB had effectively imploded and had not met for several months, board members were summoned to a crisis meeting with senior RBKC officers. The solution demanded by Council officers was to impose a temporary chair (a professional management consultant) to sort out the mess and supposedly oversee the reform of the EMB by means of a recruitment drive to strengthen the Management Association, new board elections to strengthen the Board, a revised constitution and code of conduct, and a well attended AGM to cap it all off.

Arvinda Gohil was appointed as interim Chair of the EMB on 1st September 2009.  According to the available documentation her appointment was for a period of six months, but invoices reveal that she was actually paid for a period of ten months, from July 2009 until April 2010. What board members didn’t realise and apparently were never told, was that Gohil was paid £500 a day (plus expenses) for chairing the Board, and she submittted invoices for several days worked each month.  Such payments were strictly forbidden by the EMB constitution under which board members are allowed to claim expenses, but may not be paid, and so a convoluted system of payments was devised by RBKC and TMO officers working in secret.  Invoices were addressed to Pam Sedgwick, the Housing Clientside Manager at RBKC. They were then passed to Tony O’Hara, the TMO manager at Lancaster West, who approved the payments, which were then paid by TMO accountants from EMB budgets over which they had complete control. There is no documentary evidence to indicate that EMB members had any knowledge of the payments, were ever informed about them, participated in any discussions about them, or gave their consent to them.

A number of criminal offences appear to have been involved in this leger-de-main. Sedgwick, to whom the invoices were addressed, subsequently denied any knowledge of, or involvement in, the payment arrangements.  She said in a formal complaint response to our whistleblower dated 29th April 2010:

“I am not aware that any Council officer has instructed payments to Ms Gohil out of EMB funds although I did seek a legal view from the Council’s legal services at the request of the meeting in April as to whether it would be possible to pay an EMB Board member. The advice which was not, unfortunately, in writing was that there was nothing that precluded payment to Board Members. In terms of the EMB’s process in agreeing remuneration for Ms Gohil that is not something over which I had any influence or control.”

This statement is directly contradicted by internal email exchanges involving Ms Sedgwick during July 2009.  One of the  emails, authored by Sedgwick herself on 14th July 2009, is particularly damning in our view.  LINK – Sedgwick emails  Furthermore, the vast majority of the invoices for the Gohil payments were addressed to Sedgwick personally. In our view these details, taken together, strongly suggest that she had full knowledge and was actively involved in arranging the payments. It would be hard therefore not to conclude that she breached the Freedom of Information Act by providing information which we believe she knew to be false, and which was intended to mislead and deceive. Her claim to have received legal advice indicating that there would be no legal impediment to making such payments is also contradicted in the emails, as it is in a later report dated 20th December 2010 from the Head of Internal Audit, Moyra Mc Garvey, which stated that the payments were made against legal advice:

“Payments were made to HQN for the services of Ms. Gohil to act as Chair of LWEMB against legal advice.  The payment of a Chair on LWEMB constitutes a breach of the constitution.”

The Mc Garvey letter also strongly suggests that Gohil had a conflict of interest as she was Chair of the EMB while apparently under contract to RBKC, to which all her invoices were addressed:  LINK – sample invoice

“The information on file suggests that the contract for the appointment of Ms Gohil was between the Council and HQN, which may be viewed as a conflict of interest, although no signed contract was in evidence.”

We have evidence from EMB minutes indicating that Gohil never once declared any conflict of interest to the EMB – It appears therefore that she may have repeatedly breached the Companies Act under which all potential conflicts of interest must be declared at board meetings.

Lastly, Tony O’Hara authorised the payments from EMB budgets. It appears that he also may have breached the Companies Act by authorising payments, without the Board’s consent, which were beyond the limits of his authority as defined in the Financial Regulations of the Lancaster West Management Association.  LINK LWMA Financial Regulations  The evidence supporting this view is once again in EMB minutes which indicate that he never once informed the Board, nor sought its’ permission to make the payments.

Incidentally Council and TMO officers subsequently provided misleading information regarding the source of the payments, claiming they were made from TMO budgets, when in fact they were made under a Consultants Costs budget-head from the Lancaster West Management Fee, over which TMO accountants had full control. The payment code Z03656 4191, which appears next to O’Hara’s signature on the invoices, shows that the payments were debited against the Lancaster West Management Fee. LINK – LW Management Fee statement In recent years the Council has encouraged and enabled the TMO to usurp ownership of HRA budgets, including the Lancaster West Management Fee, intended for use by the EMB under the LWMA Management Agreement. As previously indicated this was routinely justified by asserting a hardline interpretation of Clause 6.3 of the 2006 Agreement which fundamentally contradicted the principles of the original LWMA management agreement, and the rights and responsibilities it conferred on the EMB.  LINK LWMA Financial Arrangements

This brings us back to Ms Gohil and her £500 a day conflict of interest. On paper she was tasked with chairing the EMB and supporting its’ revival.  LINK – Crisis meeting with Council officers   Given that the majority of board meetings under her stewardship remained inquorate, one might have expected her to immediately initiate a high profile publicity and outreach campaign aimed at informing, educating and engaging the entire resident community, most of whom were, and still are, ignorant of the management arrangements for Lancaster West, and know little or nothing about the Management Agreement, the Service Level Agreements, or any other aspect of how the EMB is supposed to work in relation to the Council and the TMO. There is no evidence in the minutes of the EMB of any discussion of such an outreach programme, nor of any attempt to initiate one. Historically, it has always proved extremely difficult, if not impossible, to hold successful elections that produce a strong and competent board in the abscence of a high profile and dynamic outreach programme and recruitment drive to engage the community and strengthen the Management Association.

Her failure to concentrate her energies in this area is, in our view, her first major failing. The other, which almost certainly arose from her conflict of interest, was her failure to identify the massive imbalance of power and the deliberate disempowerment and marginalisation of the EMB as the chief source of the EMB’s problems. Unless this was confronted, and unless she was prepared to put the interests of the EMB, and of the Lancaster West community, before those of the Council and the TMO, all attempts to stregthen or resuscitate the EMB were doomed to failure. Indeed, one of the more notorious actions of the board under her stewardship was its’ collusion with a TMO downsizing exercise (ie the transfer of the Lancaster West repairs admin staff to TMO headquarters) which  further disempowered the EMB. In our view, because of the conflict of interest inherent in her position she was unable to  respresent the best intersts of Lancaster West residents and this was the decisive factor in her failure to fulfill her brief.

Incidentally, council officers have accused the author of this blog of defaming Ms Gohil. These alllegations are founded in part on the convenient and oft repeated fiction that she was appointed, not by the Council but by the EMB.  This in turn implies that the EMB was competent at the time, which is of course a complete nonsense. Furthermore, the board remained incompetent under her stewardship. Consequently, the argument that the EMB was responsible for decisions taken during her tenure is in our view false, as there was no free democratic process in play at the time and Board members were effectively coerced into aquiescing with whatever recommendation came from Ms Gohil, who was seen as the Council’s enforcer.  Indeed board members believed that Gohil had been appointed by the Council and represented, like a ‘Sword of Damocles’, the vengeful power and authority of the Council. Furthermore, it would appear from the single newsletter that was produced, and which was authored by Gohil herself, that she herself believed she had been appointed by the Council, and not by the EMB. Her alleged appointment by the EMB was therefore, in our opinion, no more than a smoke screen. In reality she was the Council’s enforcer and had a significant conflict of interest.   LINK – Newsletter

In considering this period it is vital to remember that since the signing of the 2006 Modular Management Agreement the process of marginalisation and disempowerment of the EMB, by means of the notorious Clause 6.3,  had been greatly accelerated by RBKC and TMO such that the EMB was rendered completely powerless, had no real function or role, was riven by internal conflicts, and had become totally disorganised and demoralised. This disempowerement is illustrated In a letter dated 16th June 2010 from the Executive Director for Housing at RBKC, Jean Daintith, who quoted Clause 6.3 and stated that:

“The EMB, Council and Kensington and Chelsea TMO has been governed by a modular management agreement since April 2006. Under this agreement the main management function for operating the Lancaster West estate was passed over to the TMO. The effect of this is to transfer the bulk of the operational duties and financial responsibilities to the TMO… and management is not within the locus of the EMB”.

Given the complete disempowerment humiliation and demoralisation of the EMB Gohil was able to persuade them, on behalf of TMO management,  to agree to the transfer of the in-house admin team, who handled repair requests, to TMO headquarters, on the pretence that this would improve efficiency. Most residents would argue that the administration of repairs and other services has become more remote since then with no evidence of any improvement. Finally, in April 2010 a Special General Meeting was called, also allegedly by order of the Board, for the purpose of recommending to the Lancaster West Management Association that they voluntarily dissolve the EMB and invite the TMO to take full control of the management of the estate. There was a massive turnout to the SGM. The assembled Association members refused to recognise Gohil as chair, and overwhelmingly rejected the recommendation to dissolve the Management Agreement.

treadmill-2

The End Game?

The EMB meeting which followed the Special General Meeting was extremely fractious, with much overt criticism of Gohil and demands for her resignation. At the end of the meeting she stood down and was replaced by the incumbent vice-chair, one of the elected members. Link – EMB meeting notes April 2010 Board member elections followed soon after at an AGM in June 2010. However the new board proved not much better than the board that had collapsed in 2009, and made little attempt to engage with the community. The recruitment drive to the LWMA, which Gohil had failed to deliver, was not delivered by the new board either. They had still not learned the crucial importance of embracing transparency and nurturing close ties with the LWMA and the Lancaster West community. The ‘Peasants Revolt’ at the SGM was thus, in many respects, the last hurrah of the Lancaster West Management Association, after which the EMB became increasingly isolated, secretive, paranoid and self-seeking.

You might wonder why council officers would continue to prop up this arrogant and thoroughly incompetent board despite their continued poor performance and the increasing level of complaints that this engendered during 2011 and 2012. The answer would seem to be that yet another review of both the TMO and EMB management agreements was begun in 2011 and has continued over the last couple of years. Swingeing cuts to the government subsidy that supports the Housing Revenue Account on which both organisations depend, and the recent introduction of a new self-financing regime for local authority housing has further complicated matters and appear to have caused the MMA reviews to drag on and on for much longer than was initially anticipated.

We have no reason to suspect that the TMO review has been improperly conducted, but the EMB review has been quite another story. During the two years during which it has been underway there have been only two review meetings held, and the only representative of the EMB to attend these meetings was the corrupt and thoroughly discredited EMB Chairperson Robert Bryans. The minutes of the review meetings reveal that there was no discussion of the notorious Clause 6.3 referenced above. We have no doubt, therefore, that the Council’s intention is to further consolidate and legitimate the illegal transfer of powers that was the main feature of the 2006 EMB Agreement, and thereby complete the disempowerment and marginalisation of the EMB. Once this is accomplished there would no longer be a valid reason for the EMB’s continued existence. We strongly suspect that the only reason why they continue to prop up the failed board is because they want Bryans’ signature on the new Agreement, and believe they can get it without significant resistance from other EMB members, who know little about the so-called ‘review’ that has been undertaken, and have little understanding of the issues involved, having been kept entirely out of the negotiations.

Bryans is one of those the Council’s solicitors have accused us of defaming. Our response is simply to point out that his misuse of EMB premises at Baseline Studios is a matter of public record. The complaint against him was upheld by an RBKC Property Services investigation and reported in the minutes of the October 2012 EMB meeting, which also recorded the perverse decision of the EMB (despite being inquorate as usual on that occasion) to take no punitive action against him. The  investigating officers later commented that, when confronted with the evidence, Bryans “denied doing anything wrong (but) did not deny that his daughter in-law was using the address. He actually confirmed that this was happening”.

Subsequently the Town Clerk, Nicholas Holgate, in a letter dated 17th December 2012 (yet another formal complaint response) said the following about the Bryans affair and the current state of the Board:

“Given that the complaint against Mr Bryans will be referred back to the Board in early 2013, I am as yet unable to comment on the final outcome. I am however satisfied that the Council carried out a thorough investigation of this matter and have considered all potential sanctions that could be laid against Mr Bryans. It is up to the Board to consider this matter but I do understand your concern that this decision making lies with them when our own investigations have confirmed that the Board, as previously constituted was not operating in accordance with the EMB’s Constitution. We will ensure that Council Officers are present at the Board meeting when the complaint is next discussed to ensure a due process is followed”.

We finally wrote back to Mr Holgate on 23rd July asking why we had still seen no sign of the promised intervention by the Council to clean up the mess of the EMB. We got no response from him. Instead we began receiving heavy handed letters from RBKC Legal Services, accusing us of defaming Bryans, and the several others mentioned above, with implied threats of legal action against us if we didn’t retract and capitulate.

We can’t say whether Holgate himself may have ordered this crackdown on us because Vimal Sarna, the solicitor involved, is still refusing, despite having been repeatedly asked, to reveal who instructed her

Anyway, regardless of whether the intention of the Council is to destroy the EMB completely, or merely to continue to disempower and marginalise it to the point at which it serves no useful function, RBKC is directly responsible for the EMB’s decline and disintegration, and must take responsibility for the rescue and resucitation that is now urgently required. Merely anouncing board elections or general meetings will not suffice. This has been the recent incompetent strategy of the EMB itself, and will almost certainly accomplish nothing.

The Council must now organise and fund a high profile outreach programme to inform, educate and engage the Lancaster West community with a view to reforming the EMB, not as a disempowered and marginalised clone of the current board, but with sufficient power and authority to manage this estate on the Council’s behalf, and to hold the TMO responsible for the services it provides here.

Ideally, the EMB should be directly empowered to mange, and to choose whether or not to commission sevices from the TMO, or from some other source or sources. However, given their long history of witholding power from the EMB and of dishonouring the Management Agreement that obliges them to empowe the EMB, it seems most unlikely that there will be any such change of policy at RBKC.

The only alternative on offer appears to be the use of Service Level Agreements. These are meant to regulate service delivery and make the TMO accountable to the EMB for the quality of the services they deliver. A complete set of SLA’s was prepared prior to the signing of the 2006 MMA. However they were not even mentioned in the Agreement itself and were never implemented – more evidence, if it was needed, of the the Council’s and TMO’s determination to disempower the EMB at every opportunity. In any case, even if they had been included in the Agreement, as they should have been, the SLA’s were completely toothless as they did not enable the EMB to penalise or sanction the TMO in any way for negligence or poor service. The attempt to use SLA’s to resolve the current EMB crisis would therefore be entirely ineffective. The EMB would remain essentially powerless, and as we have already argued, any attempt to reconstitute the EMB in this powerless and marginalised state will be doomed to failure.

In our view, unless there is a radical change of heart and of attitude at RBKC the future of the EMB looks extremely bleak.

It will be , as they say, a cold day in Hell……

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