icm2re logo. icm2:re (I Changed My Mind Reviewing Everything) is an 

ongoing web column  by Brunella Longo

This column deals with some aspects of change management processes experienced almost in any industry impacted by the digital revolution: how to select, create, gather, manage, interpret, share data and information either because of internal and usually incremental scope - such learning, educational and re-engineering processes - or because of external forces, like mergers and acquisitions, restructuring goals, new regulations or disruptive technologies.

The title - I Changed My Mind Reviewing Everything - is a tribute to authors and scientists from different disciplinary fields that have illuminated my understanding of intentional change and decision making processes during the last thirty years, explaining how we think - or how we think about the way we think. The logo is a bit of a divertissement, from the latin divertere that means turn in separate ways.


Chronological Index | Subject Index

Flaws and flops in deregulation and self assurance

After Sonia’s discoveries in the London Borough of Mr Garrick and Mr Omar

How to cite this article?
Longo, Brunella (2018). Flaws and flops in deregulation and self assurance. After Sonia’s discoveries in the London Borough of Mr Garrick and Mr Omar. icm2re [I Changed my Mind Reviewing Everything ISSN 2059-688X (Print)], 7.4 (April).

How to cite this article?
Longo, Brunella (2018). Flaws and flops in deregulation and self assurance. After Sonia’s discoveries in the London Borough of Mr Garrick and Mr Omar. icm2re [I Changed my Mind Reviewing Everything ISSN 2059-688X (Print)], 7.4 (April).

London, 23 July 2018 - In Save the Safest. Sonia’s discoveries on data falsification, my icmre 6.1 issue published in September 2017, I presented a real case of data process engineering useful to understand how data falsification impacts the rights and reputation of individuals and organisations on one side and the role of professionals and their codes of conduct and good practices on the other.

What happened then to Sonia, the neighbour I helped to manage some data and documentation a couple of years ago?

Nothing good, I am sorry to say. She was evicted, unfortunately. And I followed her the year after. This is an account of what happened with some further reflections on our so immature data engineering field of practices.

The philosophy behind the self-reliance concept

In 1841 Ralph Waldo Emerson, an american philosopher and writer I would not have any chance to know if I was not obsessed with the pleasure of browsing libraries shelves, produced an essay on the concept of ‘self-reliance’. This was defined, as far as I have understood from bite and run reading while doing something else, as a self determination force that motivates individuals to drive their own lives, as a matter of moral overarching priority on whatever happens around them.

From such perspective, there is an absolutely respectable ambition and goal in the recent public policy-makers choice of promoting self - assurance and regulated self assurance. I personally could not agree more.

Unfortunately the evidence policy makers and operational researchers are gathering is that such provisions fail their scope at implementation stage. They can even trigger abuses of processes, instead of more governance and assurance.

The reason may be simpler than you think: they just ignore, in fact, and that is a huge fault, the tendency of human beings to exploit, abuse and profit from others, leveraging on imbalances of power and other social asymmetries instead of fostering constructive and positive relationships, even when they declare all sorts of good intentions. You can see confirmation of such sad conclusion in several recent cases of collapses in charities and social enterprises, in finance, in education.

So, what are the remedies we can think of? Some experts have suggested we need to avoid positive and optimism bias. Others keep on insisting on free trade and hyper-liberalist approaches. And it is quite common to rely on academic views and recipes, even if it is known at least since the mid ‘70s that education, per se, does not create more equality or opportunities or a more just distribution of wealth: injections of more information or educational programmes, alone, cannot guarantee any effective individual and social change.

It is very rare that people recognise the opportunity and need to call in and act upon the evidence offered by data engineers - and not even, by the way, gas safety engineers!

Self assurance against rogue landlords and abuses of the no fault eviction procedure

The self assurance remedy provided with the Deregulation Act 2015 did not work for Sonia and for myself. We did not persuade the Judge in the County Court that the landlord’s behaviour was so wrong up to the point he should not have the privilege to use the Accelerated procedure (known as Section 21 Notice) for repossession. This is set in the law as a special right given to landlords who want to evict a tenant after a minimum break clause, usually six months, or at the expiration of an Assured Shorthold Tenancy agreement, with no reason or justification. But to use the Section 21 procedure they have to prove they have behaved honestly and responsibly and they have to have all their cards, paperworks and of course relationships with their tenants in order.

No circumstance can stop a Judge from making a possession order on a Section 21 procedure if he or she is satisfied the Landlord acted honestly and correctly. My case seemed the perfect one to challenge the favour that rogue landlords tend to obtain by unscrupulous solicitors and judges who are very reluctant to punish them “beyond any reasonable doubt”. And I have reasons to suspect it was indeed managed as a mocking trial by the judiciary. In fact, I achieved the personal record of three no fault evictions in less than ten years, two of which very intertwined because both Mr Omar (my third landlord) and Mr Garrick (the second one) shared the same type of preferential treatment and problems with the local authority, the London Borough of Lambeth, where Mr Omar took over - without any agreement, consent and not even awareness on my side - my own rights on Mr Garrick’s house, exactly as somebody else did with Mrs Brennan’s flat in North London (that was my first landlord, whose solicitor decided to fake a Section 21 eviction when it was clear Mrs Brennan had no power of attorney to sell me the flat she had promised, allegedly belonging to her brother instead).

But I will leave the intricacies and complications of such property management disasters to another article on my "mocking trials". Let's concentrate for now on the failure of the self assurance concept: in fact, the Section 21 Accelerated procedure does not require landlords to provide any reason to claim repossession of premises let on Assured Shorthold Tenancies.

The recent self - assurance principle introduced in the housing legislation (Section 38 of the Deregulation Act 2015 modifying Section 21 of the Housing Act 1988) as a mitigation and behavioural strategy against rogue landlords and abuses of such procedure did not work at all neither for Sonia nor for myself.

In some respects, it was not even taken into account by the Judge as it was not recognised as pertinent to the very nature and substance of the whole proceedings.

In Sonia’s case the Judge rejected any objection to the Accelerated Procedure because Sonia had not engaged with the Local Authority to call for an inspection that would give then the primary authority the opportunity to assess and demonstrate breach of planning permissions and health and safety rules. She could even be considered responsible for not bringing forward the case with the local Council. In that, her duty solicitor function turned out to be almost pathetic as he had to justify her client’s choice not to obtain the Local Authority inspection when actually the truth is that there are no officers responding any call or complaint for building controls! And even when the local councillors or neighbourhood organisations create a protective net for whistle blowers and active members of the community, it looks like we live in the London Borough of Mr Garrick and Mr Omar: their words with the Council count more than our reports, calls, photographic evidences and assessment of facts and antisocial behaviour by the Police.

In my case, I carefully avoided to touch any cord suggested by Section 33 of the Deregulation Act (that should protect tenants from retaliatory evictions and it could have been appropriate as Mr Omar produced the Section 21 Notice when it was clear I would not drop my claim for damages against Mr Garrick - but it would not be supported by any Local Authority act or report, notice or document). I used instead the argument of the breach of Gas Safety rules, for which I had accumulated 18 months of evidence of harassing behaviours and provocations. However, the judge decided and with a quite unusual exhibition of ruthless for my witness statement and for the spirit of the recent legal provisions, that “on a balance of probabilities” the reason why the landlord had not given to me the prescribed information (Landlord Gas Safety Certificate) at the start of the tenancy was because, as his solicitor put it, a material distraction might have occurred and not because, as I demonstrated, the landlord had his own very personal way to address the question of gas safety, relying on a complaisant network of fake firms and professionals, ready to produce gas safety certificates and other documentation “on demand” (and regularly invoiced by the way).

The fact that a landlord has built up his little or big real estate empire on defective premises, breach of planning permissions and tax evasion, counting on people with false credentials or qualifications and powerful friendships and political connections, is of course not at all pertinent to the legal process that opposes him to a tenant he wants to evict with the Section 21 procedure.

Nor it is of any significance at all, beyond some possible technical delays, the fact that the eviction would have inflict on me great hardship for a number of reasons, including disruptions to my precarious and in the opinion of my GP and other medical professionals vulnerable health conditions (after the first eviction, in 2012-2013, I started develop an autoimmune disease that had reached the point of impacting all aspects of my daily life after the second one, in 2015-2016).

As a matter of civil procedure protocol, I tried to talk with Mr Omar and to negotiate a different solution before the resolutive hearing in Court took place on the 9th February 2018. Profiting from some lessons learned from Sonia’s experience, I offered Mr Omar my availability to negotiate the amount of rent paid for the accommodation.

I also provided a detailed summary of case-law showing how a quite simple repossession claim risked to be transferred to the magistrate court if the Judge had considered my evidence. Few days before the decisive Court hearing, namely on the 5th February, I pedantically explained to Mr Omar’s son that in recent years Magistrates Courts have increasingly found landlords in breach of Gas Safety (Installation and Use) Regulations 1998 and of the Health and Safety at Work etc Act 1974 and sentenced them. Such sentences include for instance not less than 16 weeks imprisonment, 200 hours of unpaid work, fines for not less than £5,000 - plus costs of litigation and / or compensation.

In the vane hope to get the trust needed to negotiate a new tenancy agreement and re-discuss the other case still in Court (my unlawful eviction from Mr Garrick’s house that Mr Omar took over after the alleged payment of a 400,000 pounds fine to the Local Authority), I added that under Forgery and Counterfeiting Act 1981 S1, S3 and 4 he would risk up to 10 years imprisonment and there are also cases of non custodial sentences that have imposed fines (and awarded costs) up to hundreds of thousands pounds because non compliance with mandatory requirements like gas safety checks.

What a surprise the day after such attempted negotiations, the afternoon of the 6th February, to read that with very rare and unusual coincident velocity, a Secretary of State signing as Sarah Newton (Minister of State, Department for Work and Pensions) changed the law on the 5th February in that: The Gas Safety (Installation and Use) (Amendment) Regulations 2018 were laid before Parliament on the 6th February and would come into force in two months time, from the 6th April. Such amendments have actually relaxed the record keeping requirements for landlords, increasing their discretional ability to produce evidence that they have performed the gas safety checks at regular times and substantially watering down, in practice, the provisions made with the “self-assurance” rules contained in the Deregulation Act 2015.

On the 7th February evening, less than 48 hours before our hearing, Mr Omar sent a me an email with an attached backdated letter (dated 6th February) informing that an appointment for the annual Gas Safety inspection would take place the 8th February, anytime between 10 am and 4 pm. The letter also asked: “Can you kindly give access for the engineer accordingly or alternatively he can access the property using the spare key we hold. Unfortunately, this appointment cannot be rescheduled due to the expiration of your existing Gas Safety Certificate.”

So in my absence another “valid-to-be” Gas Safety Certificate was apparently produced the day before the ultimate Court hearing of the S21 repossession claim. Nobody else but Sonia and myself could insist with the verification of the identity and the credentials of the gas safety engineer Mr Anwar S. The last, as Sonia had discovered last year, did not actually exist at his registered address in Surrey. He never replied to our requests and phone calls so that we did not know what the actual relationship of Mr Sayed was with Mr Omar, and how did he manage to help him with gas safety certificates for possibly many years.

At the hearing of his possession claim, Mr Omar’s solicitor showed to the Judge a message or letter they said would provide evidence I had received all the prescribed information. I was not told what such document consisted of. The Judge did not ask if I had that piece of evidence, and I was not even allowed to speak or ask what it was (“you will have your time for a reply Ms Longo” was the Judge’s very laconic reaction to my attempt to establish the obvious rights that all parts should be on the same page at the same time when examining evidence). In sum, it seemed it was perfectly irrelevant for the Judge that I was attending the hearing, as I would not had a substantial right to oppose a Section 21 eviction in any case, no matter what pieces of evidence I would or would not rely on.

That letter or document offered by Mr Omar apparently persuaded the judge that the original Gas Safety certificate was available to me at the start of the tenancy and I was putting forward “excuses” for not giving back the flat - an argument the only use of which was to highlight a negatively perceived state of need or weakness on my side (why you do not have another place where to live? you must be so destitute that there is no point for the legal system to assist you). Nothing would distract the Judge’s attention from her main purpose that was to verify the assumption that “on a balance of probability” the Landlord was right.

Mr Omar also showed a Gas Safety Certificate produced by his engineer the day before the hearing, just to impress on the Judge the certainty of his commitment to compliance.

The Judge did not spend a word on the evidence I put forward with my chronology of facts: no relevance given to the Gas Safety warnings I had received from my Gas safety engineer in 2016, saying there were pipes to be fixed in the basement. Not even a word on another Gas safety warning I paid for in 2017 saying that there was no access for the tenants to the GAS safety valve as the landlord refused to hand over traditional fire brigade keys to access the meters (that also caused annoyances with the utilities companies, pressurising me to get the meter readings, but this is another story as it seemed I was the only one paying bills for the premises in one hundred years!).

The evidence that I had to pay for such gas safety checks in emergency circumstances, for my own safety, seemed irrelevant to the Judge. Such documents, that could lead the Judge to transfer the case to a criminal court, were quickly dismissed by Mr Omar’s solicitor as totally irrelevant or untrue in respect of the repossession claim, in a typical Aunt Sally game the Judge seemed all in all very well aware of.

The professional networks

As Sonia, who was pointlessly convinced by me we should trust the legal system and the civil procedure rules, I myself was also hopeless in requiring further help from various customer services (H&S Executive, Solicitors Regulation Authority) that have dealt with the issue of bogus professional credentials in several occasions in recent times.

In particular, I asked the SRA to investigate the firm the Landlord used to carry on his legal claim for repossession of property: such company did not actually disclose the identity of neither the landlord nor the solicitors, so that it was basically impossible to have a word with any lawyer representing Mr Omar before the hearing. They use in fact fictitious addresses covering up the real identity of the parts in the claim’s paperwork so that the Courts would not had any chance to prosecute them in case they could be caught liable on other major, and criminal, issues and risked their case to be transferred to the Magistrates Court. It is completely unnecessary, from their point of view, to discuss or negotiate anything with the tenant in a Section 21 possession claim. The law recognises the tenants a potentially powerful veto if he or she helps with practical governance against rogue landlords but the professional network has nothing to lose in standing with their rogue clients especially when they are rogue themselves.

The SRA concluded that “the information provided does not suggest the organisation or the individuals are acting as solicitors. We note the directors are described as Sales Managers and we can see no evidence the organisation is carrying out reserved legal activities.”

Therefore there is no possibility to complain about real solicitors acting as fake solicitors because the Solicitors Regulation Authority cannot have a say on fake solicitors. And on top of that, the fake as well as the real solicitor could always invoke a legal privilege for their conduct, with little or no possibility for the Civil Courts to dispute the motivations or circumstances of their behaviour.

Conclusions

Data engineering is a field in which we still miss basic and enforceable rules of conduct, clear preventative policies and sanctions. In several articles of this magazine I have talked about mistakes and false data, the role of mandatory administrative metadata and data governance processes. All these problems are perceived by many legal and IT communities in trivial terms, blaming the use of technology or the cuts on public budgets for any wrongdoing. However, it is also encouraging to see that like Sonia and myself an increasing number of professionals do not find anything to laugh about nor any excuse credible when there is such huge evidence of faulty reasoning and lack of responsibility.

Jeopardising best practices does not only put pressure on public policies. It dangerously diverts whatever decision or judgments on a mess trajectory, and leaves a course of actions to be mostly driven by emotional and emergency responses, the unintended consequences of which can create chaos and increase the risk of criminal infiltrations in a wide range of activities in any sectors.

In Save the Safest I mentioned two classes of solutions to the data falsification problem, one relying on the strength and quality of public policies and regulations (what we commonly call assurance), the other leveraging on the power of fact finding and data assessment, that is almost always relying on information and communications technologies.

Both the top-down and the bottom-up approach have not yet proven to be effective in correcting the human ability to skip any accountability check and reframe the status quo in ways that just get away with the critics and please the mainstream professional and political actors.

In fact, stakeholders tend to exploit agencies in order to construct disengagement schemes, in which responsibilities are legally transferred to third parties, technical justifications are carefully crafted brick by brick upon political briefs and nobody can be in the end considered liable for any breach of trust, negligence or professional misconduct.

H&S legislation and regulations have the declared purpose to protect people lives but very sadly we have to recognise, one or two centuries after their first conception in modern terms, they serve the stakeholders’ community and tend to ensure consensus among multiple political and commercial interests more than be actually concerned with people lives and wellbeing.

The public enquiry on Grenfell is going to provide further evidence on such state of the affairs in H&S.

On the other end, the data engineering culture of our times is still pretty much elementary, in nuce, underdeveloped, still unable to address the specificity of the problem of data authenticity beyond the parts’ call on an improbable “balance of probability” rule to cover up wrong and illegal situations (for an interesting and timely analysis of recent case law showing how the Judiciary tends to deal with problems of mistakes and false data I have often written in this magazine see The meaning of mistake, New Law Journal, 30 march 2018).

In its essence, our data culture, in spite of the massive technological development, has not progressed very much in the last century from the stage of being able to foster awareness: we know that we may have a problem if we routinely rely on false, wrong, inaccurate data, as Henry Simon beautifully described in the Science of Artificial. But to be aware of a problem does not mean we will be able to solve it, as many cases of psychological attachment, addiction and technical failures demonstrate.

Few weeks after my Save the Safest article, the Secretary of State for Communities and Local Government published a first interim report about an independent review of building regulations and fire safety, passionately written by a former Chair of the Health and Safety Executive. My thoughts were dragged on how much somebody who has presided a relevant authority in a certain field for a decade can be in a cognitive and emotional position to produce an independent review of that same sector.

However, it also true that things are often understood and accommodated with some twisted and turned rule of thumb more than with exact scientific and technical solutions, reframing contexts or re-configuring stakeholders’ interests and expectations and ensuring that some kind of slow but ultimate change can take over, against all the odds.

The very british instrument of public enquiries belongs to this family of functional remedies.

We are obviously miles away from being able to transfer any human wisdom or humanity into any of our automated or highly engineered data and information processes at present - Universal Credit being another exceptional case study of flawed design in data engineering and implementation of new bold policies.

But let’s hope that, as it usually happens in history, a crafted and weak remedy can find its way forward all the same. And it will possibly spring a trap for Mr Garrick and Mr Omar.