Chapter 32: RBKC's oversight of the TMO

Introduction

¶32.1 This chapter considers the arrangements under which RBKC exercised oversight of the TMO in relation to health and safety matters generally and fire safety in particular.

RBKC's constitutional arrangements

¶32.2 RBKC carried on its operations partly through executive members of the council, partly through committees, including the scrutiny committees, and partly through the full council made up of 50 elected councillors.

The executive

¶32.3 The executive was composed of individual councillors each responsible for a particular area of the council's functions. It was referred to as "the cabinet" when it met collectively and individual councillors were known as "cabinet members".¹⁰⁶¹⁰⁶ Part two, article 7 of the RBKC constitution {RBK00035010/1} paragraph 7.01(a). The cabinet could comprise up to ten councillors, including the leader, who appointed the members and decided which portfolio each would hold.¹⁰⁷¹⁰⁷ Paget-Brown {Day132/134:22}-{Day132/135:2}. The executive carried out all those functions that were not reserved to the full council or otherwise delegated to committees, sub‑committees or officers.¹⁰⁸¹⁰⁸ Part two, article 7 of the RBKC constitution {RBK00035010/1} paragraph 7.01(a).

¶32.4 In 2013, Councillor Paget-Brown, the leader of the council, appointed Councillor Feilding‑Mellen as the cabinet member for housing, property and regeneration. He served in that role until after the Grenfell Tower fire.¹⁰⁹¹⁰⁹ Paget-Brown {Day132/135:3-10}; Feilding-Mellen {Day131/82:23-24}.

¶32.5 The leader of the council was responsible for all portfolios and could make any decision that may have been delegated to an individual cabinet member or to the cabinet.¹¹⁰¹¹⁰ Part three, article 1 of the RBKC constitution {RBK00035007/4} paragraph 1.7. Councillor Paget-Brown said that, as leader, his responsibilities included decisions relating to housing, but not to projects such as the refurbishment of Grenfell Tower.¹¹¹¹¹¹ Paget-Brown {Day132/144:3-20}. However, he accepted that he had been responsible for ensuring that Councillor Feilding-Mellen was properly discharging his responsibilities as the cabinet member for housing, property and regeneration,¹¹²¹¹² Paget-Brown {Day132/145:3-16}. which included the oversight of fire safety within the TMO's buildings,¹¹³¹¹³ Paget-Brown {Day132/148:3-16}. communicating with the LFB,¹¹⁴¹¹⁴ Paget-Brown {Day132/145:3-16}. social housing projects and the proper management of the TMO¹¹⁵¹¹⁵ Paget-Brown {Day132/149:1-5}. and the welfare of those who lived in RBKC's properties.¹¹⁶¹¹⁶ Paget-Brown {Day132/149:6-9}.

¶32.6 The responsibilities of the cabinet member for housing, property and regeneration were set out in paragraph 1.8 of part 3A of RBKC's constitution. In relation to housing matters, they included responsibility for leadership, strategic planning and decision-making in respect of all social housing regeneration projects, policies on maintenance of the social housing stock and the TMO management agreement.¹¹⁷¹¹⁷ Part three, article 1 of the RBKC constitution {RBK00035007/5} paragraph 1.8.

The scrutiny committee

¶32.7 RBKC had a number of scrutiny committees, but for our purposes only the Housing and Property Scrutiny Committee (the scrutiny committee) is relevant. It had 11 members, whose function was to scrutinise the provision, planning, management and performance of all housing services, social housing regeneration, the TMO, housing strategy and the financing and development of the council's housing stock,¹¹⁸¹¹⁸ Part two, article 6 of the RBKC constitution {RBK00035012/3-4} paragraph 6.03(a) and (b). based on the information provided to it.¹¹⁹¹¹⁹ Feilding-Mellen {Day131/91:21-24}.

¶32.8 Between 13 October 2010 and 11 May 2016, Councillor Quentin Marshall was chairman of the scrutiny committee.¹²⁰¹²⁰ Marshall {RBK00033744/2} page 2, paragraph 9; Marshall {RBK00033744/28} page 28, paragraph 118. He was succeeded by Councillor Sam Mackover, who chaired his first scrutiny committee meeting on 13 July 2016.¹²¹¹²¹ Mackover {RBK00029923/5} page 5, paragraph 20.

Scrutiny of fire safety matters

¶32.9 Fire safety fell within the scope of responsibility of both the scrutiny committee and the Cabinet and Corporate Services Scrutiny Committee. The scrutiny committee had a responsibility for it because residents of the council's housing stock were affected by arrangements relating to fire safety.¹²²¹²² Mackover {Day134/3:13-17}. The Cabinet and Corporate Services Scrutiny Committee also had a responsibility for it because fire safety was an aspect of community safety and emergency planning.¹²³¹²³ Mackover {RBK00029923/9} page 9, paragraph 40. The scrutiny committee received reports from RBKC's Housing department on fire safety across the council's estate, including the buildings managed by the TMO.¹²⁴¹²⁴ Feilding-Mellen {Day131/97:8-15}; {Day131/95:10-13}; Mackover {Day133/95:11-16}; Marshall {Day133/95:11-16}.

RBKC's fire safety policy

¶32.10 RBKC's fire safety policy dated January 2014¹²⁵¹²⁵ {RBK00001655}. was produced in conjunction with the London Borough of Hammersmith and Fulham. It set out the strategy and organisational arrangements for the management of fire safety within RBKC¹²⁶¹²⁶ {RBK00001655/2} final paragraph. and described how RBKC could manage fire safety effectively.¹²⁷¹²⁷ {RBK00001655/3}.

¶32.11 The fire safety policy applied to any premises in respect of which other parties were the responsible persons by virtue of a contract or tenancy agreement, but in respect of which RBKC retained responsibilities as landlord.¹²⁸¹²⁸ {RBK00001655/4} paragraph 2.2. Accordingly, the policy applied to the premises managed by the TMO.¹²⁹¹²⁹ Paget-Brown {Day133/7:4-9}. It required RBKC's health and safety team to have appropriate processes in place to ensure that suitable and sufficient fire safety management systems had been established and that suitable protocols had been devised to ensure that compliance with fire safety requirements was assured.¹³⁰¹³⁰ {RBK00001655/5} fifth paragraph.

RBKC's arrangements for monitoring the TMO

¶32.12 Celia Caliskan was the general needs housing commissioning manager in RBKC's Housing Commissioning Team.¹³¹¹³¹ RBKC organograms contained within {RBK00000278}. From 2005, she was directly responsible for managing the agreement between RBKC and the TMO.¹³²¹³² Amanda Johnson {Day130/136:16-18}; {Day130/144:4-6}; Caliskan {RBK00035166/3} page 3, paragraph 11. Between 2011 and 2017 she reported to Amanda Johnson.¹³³¹³³ Amanda Johnson {Day130/137:2}-{Day130/140:7}; RBKC organograms contained within {RBK00000278}.

¶32.13 Until 2016 Celia Caliskan was one of two officers in RBKC's housing commissioning team who reported to Ms Johnson on matters relating to general needs commissioning, which had been delegated to the TMO.¹³⁴¹³⁴ Amanda Johnson {Day130/143:25}-{Day130/144:3}. In 2016, she became the only officer dedicated to that task, because the second officer was made redundant and was not replaced in order to save costs.¹³⁵¹³⁵ Amanda Johnson {Day130/144:12-19}. Much of the work involved in overseeing the agreement was thereafter left to Celia Caliskan.¹³⁶¹³⁶ Amanda Johnson {Day130/149:2-4}.

¶32.14 Amanda Johnson became the permanent head of the housing commissioning team at around the end of 2010 and was then involved in overseeing the TMO.¹³⁷¹³⁷ Amanda Johnson {Day130/133:10-12}. As Celia Caliskan's line manager, she was responsible for monitoring the performance of the TMO.¹³⁸¹³⁸ Amanda Johnson {Day130/139:16-19}.

Annual performance reviews and performance agreements

¶32.15 Every July reports on the performance of the TMO were prepared for the scrutiny committee.¹³⁹¹³⁹ For example {RBK00032466}. They incorporated as appendix 1¹⁴⁰¹⁴⁰ {RBK00032466/4}. a review of the TMO's performance and (as appendix 2) the performance agreement for the coming year.¹⁴¹¹⁴¹ {RBK00032466/18}. The annual performance agreement was drawn up in consultation with the TMO. It contained key performance indicators and "actions" for the TMO to take during the coming year. It also set out the annual cycle of auditing of the TMO to be carried out by RBKC.¹⁴²¹⁴² Amanda Johnson {RBK00033719/7} page 7, paragraph 38.

¶32.16 The stated purpose of the annual performance agreement was to set out how the performance of the TMO would be monitored by the council over the coming year in accordance with its priorities and national and local requirements.¹⁴³¹⁴³ {RBK00032466/18}. The stated purpose of the annual review was to allow the council to assess the TMO's performance over the past year and to comment on various aspects of its activity in the borough that contributed to the council's strategic priorities.¹⁴⁴¹⁴⁴ {RBK00032466/4}.

Absence of fire safety as a key performance indicator

¶32.17 Although the key performance indicators evolved over the years,¹⁴⁵¹⁴⁵ Caliskan {RBK00035166/5} page 5, paragraph 24. none related to fire safety or fire safety management, fire risk assessments, or performance by the TMO of its duties under the Fire Safety Order. Although both RBKC and the TMO were aware of the delay in completing work identified in fire risk assessments, none of the annual performance agreements contained a performance indicator based on their full and prompt completion. Although Laura Johnson conceded that fact, she said that the contents of mid-year and annual reports to the scrutiny committee did provide current information about fire risk assessments.¹⁴⁶¹⁴⁶ Laura Johnson {Day128/220:3-11}. She also made the point that the focus of key performance indicators was on the "big six" matters¹⁴⁷¹⁴⁷ Fire safety, legionella, asbestos, gas, electricity and lifts. and that the details of compliance were monitored by the TMO's health and safety committee.¹⁴⁸¹⁴⁸ Laura Johnson {Day128/220:16-25}.

RBKC's oversight

¶32.18 RBKC's function was to exercise strategic oversight of the TMO's activities, not to monitor its operations on a day-to-day basis.¹⁴⁹¹⁴⁹ Laura Johnson {Day129/38:3-16}. It had monitored fire safety in the same way as it had monitored other areas of activity requiring compliance with its legislative and regulatory obligations, and the TMO reported on its performance in respect of fire safety in the six-monthly and annual reviews.¹⁵⁰¹⁵⁰ Laura Johnson {Day129/39:15-21}. Laura Johnson also discussed matters relating to fire safety at her monthly meetings with Robert Black.¹⁵¹¹⁵¹ Laura Johnson {Day129/59:11}-{Day129/60:19}.

¶32.19 Janice Wray's understanding was that the management of health and safety at the TMO was monitored primarily by RBKC's Corporate Health and Safety Advisor and its main Health and Safety Co-ordinating Committee.¹⁵²¹⁵² Wray {TMO00000890/37} page 37, paragraph 164. Laura Johnson's understanding was that RBKC's Housing department had not monitored health and safety at the TMO. She admitted that she had not been aware that the annual health and safety report had been presented to the RBKC corporate health and safety manager. She conceded that, in hindsight, that had been a weakness in RBKC's governance arrangements.¹⁵³¹⁵³ Laura Johnson {Day129/67:1}-{Day129/68:14}.

¶32.20 The annual performance agreement required reports on discrete areas, one of which was always health and safety. The health and safety reports were drafted by Janice Wray. The broad purpose of their inclusion was to draw attention to any relevant developments.¹⁵⁴¹⁵⁴ For example {RBK00032466/23-24}.

¶32.21 Celia Caliskan said that she received information from Janice Wray, which she used for drafting the performance review.¹⁵⁵¹⁵⁵ Caliskan {RBK00054409/5} page 5, paragraph 13. The division of labour between Celia Caliskan and Janice Wray is usefully demonstrated by a draft version of the 2016-17 annual performance review, in which the person responsible for drafting each section appears to be marked in red.¹⁵⁶¹⁵⁶ {RBK00002395/15}. The health and safety section of the report is marked "TMO" and ''Janice''¹⁵⁷¹⁵⁷ {RBK00002395/15}. Janice Wray confirmed that she had drafted the health and safety sections of the performance reviews.¹⁵⁸¹⁵⁸ Wray {Day140/84:10-14}. Amanda Johnson said that Celia Caliskan relied heavily on Janice Wray for the information contained in the report.¹⁵⁹¹⁵⁹ Amanda Johnson {Day130/209:21}. Although Amanda Johnson said that she would scrutinise the contents of Janice Wray's reports, she accepted that they contained no independently verified information about the TMO's performance.¹⁶⁰¹⁶⁰ Amanda Johnson {Day130/210:3}-{Day130/211:4}.

¶32.22 Laura Johnson also confirmed that the health and safety sections of the annual performance review had been drafted by Janice Wray and Celia Caliskan.¹⁶¹¹⁶¹ Laura Johnson {Day129/145:24-25}. Some of them, such as the health and safety section of the annual performance review for 2013/14, contained judgments and assessments that reflected well on how fire safety was being managed by the TMO.¹⁶²¹⁶² {RBK00032466/15-16} paragraph 3.9. In practice, Janice Wray was effectively writing her own reference.

RBKC's audits of the TMO

¶32.23 The purpose of RBKC's audits on behalf of the TMO was to provide senior management and members of the TMO with assurance about the adequacy and effectiveness of the internal controls in the area being audited. The audits considered each service area and gave an assurance assessment rating ranging from "substantial" to "limited". Where the rating was "limited", a further exercise was usually undertaken within six to nine months to assess the effect of remedial measures.¹⁶³¹⁶³ Patel {RBK00029884/2} page 2, paragraph 5.

¶32.24 RBKC produced an audit plan for the TMO every three to five years in order to ensure that the areas of interest were audited at least once every five years.¹⁶⁴¹⁶⁴ Patel {RBK00029884/3} page 3, paragraph 9. The plan was approved by the TMO's Finance, Audit and Risk Committee at the beginning of each year.¹⁶⁵¹⁶⁵ Patel {RBK00029884/2} page 2, paragraph 7. RBKC allocated a maximum of 100 audit days to the TMO a year.¹⁶⁶¹⁶⁶ Patel {RBK00029884/3} page 3, paragraph 10.

¶32.25 A list of audits was provided for in the annual performance agreement between the TMO and RBKC.¹⁶⁷¹⁶⁷ {RBK00030149/22}. They were carried out by RBKC's internal audit department as part of its corporate function rather than the housing department.¹⁶⁸¹⁶⁸ Amanda Johnson {RBK00033719/9} page 9, paragraph 50. At the conclusion of an audit, the auditors would provide the TMO officers in charge of the relevant departments with a draft of their report which would be reviewed by TMO before it was formally issued. The TMO was given two weeks to provide its responses to the report's recommendations together with an indication of the time within which any necessary steps would be implemented.¹⁶⁹¹⁶⁹ Patel {RBK00029884/3} page 3, paragraph 10.

¶32.26 The annual performance agreement forming part of the report to the scrutiny committee in July 2012 identified that an audit in relation to fire risk assessments by the TMO was due to take place in 2012.¹⁷⁰¹⁷⁰ {RBK00030149/22}. There is no evidence that it did in fact take place.¹⁷¹¹⁷¹ Amanda Johnson {Day131/32:17-25}.

¶32.27 RBKC carried out three separate audits of health and safety management at the TMO between 2013 and 2016. The first was undertaken in 2013.¹⁷²¹⁷² {RBK00000313}. Its purpose was to examine how health and safety policies and procedures were being implemented. The TMO received a "limited" assurance rating in respect of that audit.¹⁷³¹⁷³ Amanda Johnson {Day131/33:3-16}. A follow-up audit was carried out in December 2013 when the TMO was given a "satisfactory" rating.¹⁷⁴¹⁷⁴ {RBK00000320}. The final audit took place in March 2016.¹⁷⁵¹⁷⁵ {RBK00000531}. It was a high-level audit with a budget of 10 audit days. The TMO received a "substantial" assurance rating.

¶32.28 Two other significant reviews of the TMO specifically in respect of the management of fire safety were carried out by external parties at the request of the TMO. The first was carried out by Salvus Consulting Ltd in September 2009, which specifically considered fire safety policy and procedures.¹⁷⁶¹⁷⁶ {SAL00000013}. The second was a safety management review carried out by Matt Hodgson in July 2013.¹⁷⁷¹⁷⁷ {TMO10040497}. We address these in detail in Chapter 37.