Has LBWF followed the relevant ‘technical advice’ when addressing the flat entrance door scandal? It’s a key question but one the Town Hall finds difficult to answer

In correspondence earlier this year, Darren Welsh, LBWF’s Deputy Strategic Director, Resident Services, stated that the strategy adopted for dealing with the 217 fake FD60 flat entrance doors (FEDs) at Northwood Tower and four sheltered housing blocks conformed with ‘the technical advice’ that the Town Hall had been supplied with.

What follows describes my tortuous efforts to establish whether this claim stands up to scrutiny, and well illustrates the depressing fact that asking LBWF a straightforward question by no means guarantees a straightforward answer, largely because of the debased way that it operates the Freedom of Information Act (FIA).

The story starts on 14 January 2021, when Mr. Welsh sent me an e-mail which addressed my public criticism of LBWF’s actions over fire safety, and particularly the fake FEDs.

Amongst other things, I had argued that LBWF’s decision to test three samples from the 217 FEDs in place and then extrapolate the results to cover the whole batch was illegitimate, because the testing contractor had explicitly advised in its report that the test results applied ‘only to the samples as received’, and in fact under the prominent heading ‘Limitation’ had underlined:

 ‘the results only relate to the behaviour of the specimen of the element of construction under the particular conditions of the test; they are not intended to be the sole criteria of accessing the potential fire performance of the element in use nor do they reflect the actual behaviour in fires’.

But Mr. Welsh was having none of it, and responded in robust fashion:

‘The government guidance recommends a sample door or doors should be tested. As you have noted, the testing results for the sample doors tested include a standard waiver from the company that tested them, however, this is normal industry practice and does not invalidate the results of the sample door tests. The doors are part of a batch of identical doors of the same door type and therefore, it is accurate, in the Council’s view, to say that, based on the results of the sample testing, the doors that form part of the batch will offer the same level of fire protection as the doors tested and will meet the standards required’.  

And he ended with the flourish: ‘This is also in line with the published government guidance and the Council’s technical advice’.

Intrigued by the latter phrase, which seemed to confirm a striking degree of professional confidence in LBWF’s overall approach, I used the FIA to ask for a copy of what Mr. Welsh was referring to, quoting from his e-mail in order to be completely clear about what I wanted.

At first, LBWF simply ignored my request, but after I sought a review, on 22 March 2021 Mark Hynes, Director of Governance and Law and Data Protection Officer, sent me a response, which, he underlined, had been composed after consultation with ‘the Service’ (presumably meaning the housing department) as well as ‘the relevant third-party supplier’.

 He advised that ‘The Officer who wrote the email that you have quoted from has unfortunately left the Council’, so clarifying what was meant by the phrase ‘the Council’s technical advice’ had not been easy.

Nevertheless, he continued, based on his investigations, he could state the following:

‘The Service have advised me that we do not hold any independent technical guidance that relates to your enquiry…It appears that the Council Officer’s response to you which stated “the Council’s technical advice” is incorrect. The Council does not hold a record to this effect and therefore the same cannot be provided to you’. 

These revelations were certainly surprising, particularly because they opened up the possibility that Mr. Welsh’s 14 January 2021 e-mail to me was disingenuous. After all, if there wasn’t any ‘technical advice’, why had Mr. Welsh referred to it in the first place?

However, a further twist quickly followed, because when I checked LBWF’s website, it emerged that, far from having left the Town Hall, Mr. Welsh was very much still in post.

And when I then contacted Mr. Hynes to clarify, he answered by return, and as if taken by surprise, stating ‘I can assure you that Darren Welsh is still employed by the authority’, and promising ‘I will look further to this [sic]’.

On 12 April 2021, he reported on his new investigations, and this time renounced just about everything he had previously told me.

As to the issue of Mr. Welsh’s employment status, he admitted that his previous statement was an ‘error’, which had occurred because of a colleague’s mix up:

‘When I assigned the work for a member of my team to collate the information pertaining to your Review, your complaint was being looked at in parallel with another complaint. In both of these complaint cases, the Council officer shared the same first name. Due to human error, unfortunately, this meant that you were advised incorrectly of the departure of the Council Officer in your FOI Review. This was incorrect and I apologise to you for this mistake’.

As to the matter of whether or not there was any record of ‘the Council’s technical advice’, Mr. Hynes again changed his mind, explaining:

‘The Council is technically advised on all housing maintenance matters relating to building safety by its contractor partner, Morgan Sindall. In producing the response which was sent to you on the 14th January 2021, I can confirm that officers met with Morgan Sindall on 5th January 2021 to discuss the contents of the response and that Morgan Sindall provided verbal advice which was used to inform the response that was sent to you. This was then followed up with Morgan Sindall who subsequently wrote to the Council on 11th February 2021 to confirm their advice in writing and a copy of the email from them is attached (attachment 1). In this email, they also said that they would seek advice from specialists in this area within their Group and they then wrote to the Council on the 22nd March 2021 to confirm that this discussion had taken place and the advice that had been given (attachment 2). Both emails confirm the advice from the Council’s technical advisors that the approach taken by the Council is fully compliant with government guidance’. 

Unsurprisingly, given such an about turn, Mr. Hynes concluded by again apologising for the ‘mistakes’, and added ‘Your complaint is upheld’.

What to say?

First, it is clear from this case that LBWF continues to operate the FIA in a way that is unacceptable.  What it offers is essentially a lucky dip. If you ask a question, you will get an answer (though it may take one or two tries). But whether that answer is either definitive or truthful is another matter. And that, of course, is not how the legislation is supposed to work.

The Information Commissioner’s Office recently warned LBWF about its poor record in responding to legitimate FIA enquiries. 

It would appear that the necessary lessons have yet to be learnt.

Second, Mr. Hynes’ explanation of his mistake over Mr. Welsh’s employment status seems more than a little far-fetched. That confusion should occur because of a mix up over a ‘first name’ hardly inspires confidence in the officers involved, not least because the surnames in the two cases cited of course would have been different.

Moreover, it is reasonable to ask why neither ‘the Service’, nor Mr. Hynes himself, picked up the error until I queried it, because they all surely knew that Mr. Welsh was still in post.

Finally, though Mr. Hynes clearly believes he has settled the issue of ‘the Council’s technical advice’ once and for all, doubts remain.

For one thing, Mr. Hynes has never explained exactly why he flip-flopped, and perhaps more interestingly why his advisers throughout – ‘the Service’ and ‘the Council’s third-party service provider’ – did so, too.

What can be said, however, is that Mr. Hynes’ most recent version of events is undoubtedly expedient, as the revelation that there was a meeting between LBWF and Morgan Sindall on 5 January 2021 clears Mr. Welsh of any suggestion of disingenuousness. Specifically, if Mr. Hynes is to be believed, Mr. Welsh had every right to reference ‘the Council’s technical advice’ in his letter to me of 14 January 2021, because he had been informed of it ten days previously.

However, there is still a problem, because though in subsequent correspondence Mr. Hynes has insisted that the meeting on 5 January 2021 did definitely take place, when asked for written proof, say minutes or a calendar entry, he has not been forthcoming, arguing (a) ‘The Council does not have a statutory duty/policy or resources to undertake minute taking for all operational meetings’ and (b) ‘there is no overriding public interest in the disclosure of a calendar record pertaining to a meeting held where the complaint of one individual was discussed’ – the latter a rather strange reading of the FIA, to say the least.

What questions Mr. Hynes’ credibility further is that, in correspondence about other aspects of his claims, he appears not to have shaken off his earlier confusion, as an example demonstrates.

In April of this year, and to be absolutely sure of the facts, I asked Mr. Hynes to confirm ‘the name of the LBWF officer who authored the e-mail sent to me by Mr. Welsh on 14 January 2021’, and he answered ‘Darren Welsh based on input from Sumitra Gomer arising from information given and the clarification meeting held with Morgan Sindall 5 February 2021’.

Mr. Hynes had never before mentioned a meeting with Morgan Sindall on 5 February 2021.

But, regardless, you don’t have to be Sherlock Holmes to recognise that what happened at a meeting on 5 February 2021 is unlikely to have influenced an e-mail that was sent out three weeks previously.