January 26th, 2012
Last week we commented on proposals for a new national property company (“PropCo”) to be set up to manage the primary care trust (PCT) estate. The Secretary of State for Health has now confirmed the details.
PropCo is to be a government-owned limited company, NHS Property Services Limited. It will be wholly owned by the Department of Health and its role will be to own and manage that part of the PCT estate not required by community care providers. Property that is needed for clinical services, and mainly occupied by providers for that purpose, will be transferred to them. Support for the PCT estate will continue to be provided through existing contractual arrangements in place with service providers that already deliver and maintain NHS properties.
Now that the principle of a single management company for the estate has been established, there is real opportunity for structured management of the entire portfolio and long called for clarity on the future of the estate.
Posted by Stewart Gregory, specialising in: property law, particularly its application within the healthcare sector; advises the commercial and residential sector on site acquisitions and completed development disposals.
Stewart Gregory
0115 976 6299
sgregory@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: community care providers, Department for Health, health, NHS, primary care trusts, propco, secretary of health
Posted in Health, NHS | No Comments »
January 25th, 2012
The Law Society and the Solicitors’ Regulation Authority (SRA) have been given permission to intervene in Godiva Mortgage Limited v Travelers Insurance Company Limited. The issue is the extent to which insurers’ liability to cover multiple claims against a solicitors’ practice may be limited by aggregating them as one claim.
The current position which appears to allow large numbers of claims to be aggregated was arrived at after a decision by the SRA to shift the goal posts in favour of the insurers by altering the aggregation clause in the Minimum Terms and Conditions in 2005. It is now obviously felt that the Insured solicitors, their clients (and in cases of dishonesty, the Solicitors’ Compensation Fund) are insufficiently protected.
Further clarity on the wording is needed to allow underwriters to assess accurately the risks and fix premiums. This may result in solicitors (and other professionals) insisting on certain wordings in their primary policies, driven in all likelihood by their clients, especially mortgage lenders.
Posted by Jim Hobsley, who specialises in professional indemnity claims involving a wide range of professionals including accountants, surveyors, solicitors and barristers; experienced in policy coverage disputes.
Jim Hobsley
0207 337 1011
jhobsley@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: insurance, law society, liability, mortgage lenders, professional indemnity, public liability claims, solicitors regulation authority
Posted in Insurance, Professional Indemnity | No Comments »
January 24th, 2012
The current examination system is said to encourage schools to focus their teaching towards the actual exam, rather than providing a general overview of the subject.
The purpose of new league tables, due out next week, is to incentivise schools to raise standards and teaching for all pupils, instead of encouraging them to jump through hoops to avoid intervention. The revised tables will show more accurate and detailed statistics of grades, offering a comparison between the schools that take on high achievers and those that started at a lower base. They will carefully monitor the improvements made in each school.
It is hoped that this will further the government’s agenda to close the attainment gap between different backgrounds. This is coupled with the extra Pupil Premium funding to support poorer children. The theory is that in return schools should deliver the same level of achievement for all children, regardless of background.
Laura Richards
0115 976 6249
lrichards@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: Education, further education, Public Sector, pupil premium, school league tables, schools, teaching standards
Posted in Education, Further Education | No Comments »
January 24th, 2012
Teachers, pupils and social media - it was only a matter of time before this became a serious issue. 43 cases before the GTCE last year may not sound high, but how many more inappropriate relationships are being formed across schools, academies and the FE sector? Which begs the questions, why have we not seen Department for Education guidance specifically aimed at helping manage staff expectations and promote a consistent, measured approach nationally?
There is evidence of big differences in approach to the use of social media amongst schools- some ban teachers using the sites altogether, some allow restricted usage and others have barely considered the issue. And it needs to be looked at not only from a ‘friending’ point of view, but also to consider issues like appropriate privacy settings and profile pictures which, regardless of friending, can be accessed by pupils, parents and colleagues alike.
I hate to press for even more guidance in our sector, but this is an area where it seems schools need help.
Posted by Dai Durbridge, who specialises in safeguarding of children and vulnerable adults in education, social care and health settings; defending claims against education, social care and health providers.
Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: academies, allegations against teachers, Department for Education, Education, further education, GTCE, Social Media, teachers
Posted in Education, Further Education | No Comments »
January 24th, 2012
Research by Action for Children shows half of social workers ‘feel powerless’ to stop children being neglected due to high thresholds and inadequate resources. 80% of social workers warned that cuts will make it more difficult to intervene in neglect cases.
It is obviously difficult to make meaningful cuts in expenditure without decreasing the quality of service provided. No doubt local authorities are monitoring this balancing act very closely, and clarion calls such as this should be listened to.
However, thresholds and resources are two very different issues, and there is real danger if they are conflated. If the threshold is too low, then it is too low whatever the resources position. A lack of resources should not be a reason to lower the threshold – it would be wrong to make it easier to remove a child from his parents because social workers have less capacity to investigate the home situation. The budgets cuts create real pressure, and clear heads are needed.
Kate Bear
0115 976 6104
kbear@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: action for children, child neglect, child protection, local authorities, personal social care budgets, Social Care, social services, social workers
Posted in Local Authorities, Social Care | No Comments »
January 23rd, 2012
It is somewhat of a relief, considering the doom and gloom predicted by the industry experts, that we have only seen a handful of major high street retailers going into administration since the December 2011 quarter.
Whilst the shareholders and employees of La Senza, Blacks, Pastimes, Peacocks and now Pumpkin Patch may not share our relief, budget retailers such as Primark, New Look and Matalan appear to be bucking the trend by reporting strong Christmas trade.
However, with consumers tightening their belts after their Christmas spending the next couple of months are expected to be quieter, leaving both retailers and landlords to worry about the upcoming March quarter rent date. Perhaps our relief is going to be short lived….
Suki Tonks
0115 976 6519
stonks@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: christmas trading, high street, la senza, matalan, new look, peacocks, primark, retailers
Posted in Retail | No Comments »
January 20th, 2012
Can an employee act reasonably in rejecting a suitable alternative offer of employment even where a reasonable employee would have accepted the offer?
Yes, according to Readman v Devon Primary Care Trust. Mrs Readman, a community matron, refused an offer of suitable alternative employment as hospital matron, as she did not wish to work in a hospital. Her employer denied her a redundancy payment, stating she had unreasonably refused the alternative post. The Tribunal found that a reasonable employee would have accepted the post. The decision was overturned on appeal on the basis that the Tribunal failed to give adequate weight to the employee’s personal reasons for refusing the role. The EAT found that Mrs Readman was entitled to her redundancy payment.
This case is not helpful to employers who need to reorganise their business but wish to avoid expensive redundancies. The individual circumstances of the employee – domestic and travel arrangements, caring responsibilities and career preferences – are relevant and need to be considered.
Joanne Lewis
0121 237 3906
jlewis@brownejacobson.com
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Rating: 6.7/10 (3 votes cast)
Tags: EAT, employment, employment appeal tribunal, readman v devon primary care trust, redundancy, redundancy pay
Posted in Employment | No Comments »
January 20th, 2012
LexisNexis Butterworth is reporting on a claim against the Children’s Society that was in court on 16th January. A man in his 60s claims that, as a teenager, he was sexually molested and raped by the son of the warden and the matron at a Children’s Society home. During a police interview in 2008, the son admitted indecently assaulting the claimant and other children at the home.
The claimant argued that the son was sometimes entrusted to look after children at the home. It was argued that despite the fact that he was not an employee of The Children’s Society, the charity is liable for the abuse as it took place while the son was ‘in charge’. If this argument is successful the categories of people for whom defendants such as schools, charities and fostering agencies might be vicariously liable could be enormous.
We will be providing an update as soon as the judgement is available.
Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.
Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com
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Rating: 8.5/10 (2 votes cast)
Tags: children's services, children's society, Social Care
Posted in Social Care | No Comments »
January 20th, 2012
This week brings news that four siblings received nearly £1m from Essex Council. Their claims were based on alleged failings on the part of Essex social workers. The detail of each claim is confidential but they do reflect a change in the quantum of damages that claimants are expecting in abuse cases (and a corresponding increase in costs).
Even 5 years ago claimants proving prolonged and very serious sexual abuse over a number of years were recovering a maximum of £50,000 General Damages. More minor and isolated incidents might attract as little at £5,000. Special Damages claims were also relatively modest, with Claims of Therapy of £7,500 on average, and future loss of employment capacity usually calculated on a Smith -v- Manchester basis at between £10,000 and £20,000.
These days the effect of cases like this, and claimants’ increased use of CFAs means we are often reserving even modest claims at £100,000.
Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.
Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com
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Rating: 8.5/10 (2 votes cast)
Tags: cfa, child abuse, childrens social care, claims of therapy, essex council, insurance, Social Care, social workers
Posted in Insurance, Social Care | No Comments »
January 20th, 2012
The Patents County Court (PCC) has found that copyright in a predominantly black and white photograph featuring a red London bus on Westminster Bridge (below left), was infringed by a later image created by combining two images using image manipulation software (below right).
Although the two final images are clearly the product of different photographs, the PCC held that on a qualitative assessment Image 2 reproduced a substantial part of Image 1 and therefore infringed.
Given that the two images are taken from a very different perspective this decision seems to grant very wide copyright protection to the claimant. Here the defendant has infringed by reproducing an image of a classic London icon from a location which the judgment acknowledges is popular with photographers, and has applied a well-known editing technique to isolate the red colour of the bus.
Although there are similarities, this decision pushes the very limits of what is protectable in a photographic image.
Posted by Ryan Harrison, who specialises in intellectual property agreements and disputes, licensing, commercial contracts, and commercial and intellectual property issues arising from M & As and disposals.
Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com
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Rating: 9.0/10 (2 votes cast)
Tags: copyright, new english teas ltd, patents county court, temple island collection ltd
Posted in Brands, Intellectual Property | No Comments »
January 20th, 2012
Pumpkin Patch is the latest retailer to go into administration. The administrators have said that they will continue to trade the relevant stores whilst they look for a buyer. If a company in administration retains premises for the benefit of creditors, the administrator must treat the rent that falls due under the lease during the period as a necessary disbursement and therefore it will rank as an “expense”, which is higher up the chain of priority than an unsecured debt. Whilst this might sound like some welcome news for landlords, unfortunately it is only rent that falls due during occupation. If the Pumpkin Patch leases have rent payable on the usual quarter days then the next payment will not fall due until 25th March and by this time the landlord may well find that the administrators are no longer in occupation. Monthly rents are usually seen as a benefit to tenants but in this scenario the landlord could benefit as well.
Kirsty Black
0121 237 3958
kblack@brownejacobson.com
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Rating: 9.5/10 (2 votes cast)
Tags: administrations, creditors, debts, landlords, property, property litigation, pumpkin patch, Retail, retailers, tenants
Posted in Litigation, Property, Retail | No Comments »
January 20th, 2012
A new ruling by the Court of Appeal has added to the caselaw setting out the differences between public service contracts and public service concessions. In this case, contracts for the provision of bailiff services with the Ministry of Justice (MOJ) were concessions, meaning that the EU procurement directives are not applicable.
The court held that even though the MoJ retained considerable control over how the contract was performed and the scope for exploiting the services further by the contractor was extremely limited the fact that the payment of fees under the contract came from third parties (the debtors) and the risks of management and operation of the service transferred to the contractor were enough to make it a service concession.
The court did acknowledge that the facts of this case didn’t fit neatly into the normal descriptions of either public service contracts or concessions meaning that future cases on the same point may end differently.
Posted by Anja Beriro, who specialises in : local authority law, public sector procurements, commercial agreements, projects and shared services; clients: local authority and private sector bodie.
Anja Beriro
0115 976 6589
aberiro@brownejacobson.com
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Rating: 8.0/10 (1 vote cast)
Tags: Court of Appeal, eu procurement directives, government, infrastructure, Ministry of Justice, Procurement, public service concessions, public service contracts, Public Services
Posted in Government bodies, Local Authorities, Procurement | No Comments »
January 18th, 2012
A new national property company “PropCo” could be set up to manage the primary care trust (PCT) estate.
According to media reports the Department of Health is considering plans that the PCT estate will be better managed by a single management organisation, rather than by numerous successors to the individual PCT’s. There are suggestions that the PropCo could be devolved into regional subsidiaries with regional arms, but at this stage nothing is concrete.
Early opinion appears to be mixed. However, key questions remain, such as what effect this will have on the day-to-day management and dealings with individual NHS properties. It could be suggested such an approach may create uniformity in managing the PCT retained estate “across the board”. However, will such centralisation slow down the delivery of patient services and the placing of new providers into those properties?
There will be a need to carefully review these proposals as they emerge, but guidance on future property holding arrangements will be welcome news for PCTs.
Posted by Mick Suggett, who specialises in commercial freehold and leasehold property within the public health and local authority sectors; preparation of reports on title for lenders and public bodies.
Mick suggett
0115 908 4885
msuggett@brownejacobson.com
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Rating: 7.0/10 (2 votes cast)
Tags: Department for Health, health, local authorities, NHS, primary care trusts, propco, property
Posted in Health & Safety, Local Authorities, NHS, Property | No Comments »
January 18th, 2012
The Advertising Standards Authority has today banned an advert by French car maker Citroën for its DS4 model after it triggered seizures in a number of viewers who suffer from photo-sensitive epilepsy.
The TV advert which was seen on Sky, Watch, ITV, Quest and UK Gold featured scenes in rapid succession culminating in 304 alternating black and white ‘YES’ words appearing across a screen.
Nina Best, a specialist in advertising law at Browne Jacobson commented:
“Adverts must not include visual effects that are likely to affect adversely members of the audience with photo-sensitive epilepsy. Advertisers must remember that the rules are not only about the words or images included in their advertisement, but also the way they appear is subject to constraints. It is not only what you say that can hurt but the way you say it.”
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Rating: 8.0/10 (1 vote cast)
Tags: advertising, advertising standards authority, advertising watchdog, Brands, citroen, nina best, photo sensitive epilepsy, Regulatory
Posted in Advertising & Marketing, Brands, Food & drink, Regulatory | No Comments »
January 17th, 2012
2012 is set to be the year in which the lines between old and new media are blurred forever. The traditional media powerhouses are beginning to make headway integrating social media with conventional programming.
Consumers today use their television simultaneously with their tablet or smart phone – “second screen viewing”. Alive to the opportunity to involve their viewers, networks are promoting ways of making television a two-way flow of information, whereby the viewer can communicate via social media to both their friends and the network itself. Where viewers go, advertisers will follow.
Joint programming ventures between old and new media will present unique legal challenges for the advertising and marketing sector. They may want to utilise consumers’ live feeds and personal data, on separately owned distinct mediums, accessible in multiple jurisdictions. The technology, the networks, and the advertisers might be ready for globalised multi-medium programming, but have all the risks of complaints been considered?
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Rating: 8.0/10 (1 vote cast)
Tags: joint programming ventures, new media, old media, Social Media
Posted in Advertising & Marketing, Brands | No Comments »
January 17th, 2012
David Cameron has backed Sir Michael Wilshaw’s plans to axe the current Ofsted rating of ‘satisfactory’, stating “Just good enough is frankly not good enough”. Bold plans to tackle ‘coasting schools’ and get them to switch gear have now been outlined with proposals to change the current 3,000 schools labelled as ‘satisfactory’ to ‘improvement required’. Schools will be given three years to improve, with earlier re-inspections after 12 to 18 months. If they fail to improve, they could face going into ‘special measures’.
This announcement comes hot on the heels of plans to carry out no-notice inspections to address flaws in the system after concerns were raised that in some schools poor teachers and naughty students were told to ‘stay home’ during Ofsted inspections.
Though critics have accused these changes as being part of a wider plan to force schools to become academies, there are many who see this as a welcome move to address inadequacies and strive for the best education for all children.
Posted by Hayley Roberts, who specialises in education law advice to schools and academies, including advice on teaching schools, collaboration models and partnership structures, school companies, and a wide range of pastoral issues.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Rating: 9.5/10 (2 votes cast)
Tags: academies, David Cameron, Education, ofsted ratings, schools, sir michael wilshaw
Posted in Education | No Comments »
January 16th, 2012
Today is the first working day of the obligation under the Localism Act 2011 for local authorities and single status fire and rescue authorities to produce a Pay Policy Statement. The government issued draft guidance for consultation before Christmas and once that comes out in final form authorities will know exactly what is expected.
While a lot of local authorities will already have started thinking about drafting a statement it will require a lot of input from both officers and members and will need to be approved by the full authority. This approval is aimed at making the authority more accountable to the local tax payers with the hope that the gap between the highest and lowest earners will reduce.
The policy must be applied from 1 April 2012 and it will be interesting to see if the government’s wish to effectively “cap” the pay of the most senior officers will come true.
Posted by Anja Beriro, who specialises in : local authority law, public sector procurements, commercial agreements, projects and shared services; clients: local authority and private sector bodies
Anja Beriro
0115 976 6589
aberiro@brownejacobson.com
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Rating: 7.0/10 (1 vote cast)
Tags: fire and rescue authorities, government bodies, local authorities, local tax payers, localism act 2011, Localism Bill, pay policy statement, Tax
Posted in Commercial Litigation, Government bodies, Local Authorities, Public Sector, Tax | No Comments »
January 13th, 2012
Following the second reading of the Local Government Finance Bill in the Commons opinions remain divided. While councils have been told that they will be able to keep certain parts of new business rates rather than give it all straight to central government, the amount that they will get to keep is not yet clear and some critics are saying that it will be at best trivial.
The amounts will be based on the actions that an authority has taken to boost business within its area and this will not always be an easy calculation to make, the proposed system being a complex one.
Mr Pickles has been quick to respond to criticism that the main benefits will lie in the south-east saying that certain authorities in the middle and north of the country could have been benefitting already if these provisions were in place.
Posted by Anja Beriro, who specialises in : local authority law, public sector procurements, commercial agreements, projects and shared services; clients: local authority and private sector bodies
Anja Beriro
0115 976 6589
aberiro@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: central government, councils, local government finance bill, Procurement
Posted in Procurement, Public Sector | No Comments »
January 13th, 2012
The UK’s biggest and most controversial infrastructure project since the construction of the motorways, the high-speed rail network (HS2), was given the go ahead earlier this week despite strong opposition.
The first phase, connecting a new Birmingham station to London and the Channel Tunnel, is projected to be completed in 2026 and cost £33bn. A second phase, which will face a consultation in 2014, would extend the line to Manchester and Leeds by 2033, whilst connecting the line to Heathrow is also being considered.
Government claims that the project will create £47bn of benefits have been disputed; environmental groups say that 160 important wildlife sites will be damaged despite modifications being made to the route; and residents are concerned about HS2 affecting their land and communities.
The strength of opposition suggests that HS2 may still hit the buffers, potentially through judicial review proceedings brought in the courts. The debate over HS2 is far from over.
Kassra Powles
0115 908 6200
kpowles@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: environmental, high speed rail network, hs2, train travel
Posted in Waste & Environmental | No Comments »
January 13th, 2012
Yesterday ICAAN opened its doors to applications for generic top level domains (gTLDs). Applicants will be able to apply for specific words or letters as an alternative to the recognised top level suffixes of .com, .net and .org. Examples of early applications are .london and .pepsi (i.e. http://mybrand or customerservice@mybrand).
The changes have led to widespread concern, with companies fearing reputational damage if their key brands and trade marks fall into the wrong hands. However, with a non-refundable “evaluation fee” of $185,000 and careful policing promised by the registries, there should be a significant barrier in the way of most Internet fraudsters.
The industry is estimating we will see around 1,500 initial applications for gTLDs. In our opinion, gTLDs represent a new frontier on the Internet and, in turn, a great opportunity for companies to stake their claim with key trade marks or creative new branding.
Posted by Oliver Laing, who specialises in intellectual property agreements, anti counterfeiting and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
Oliver Laing
0115 908 4854
olaing@brownejacobson.com
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Rating: 9.0/10 (2 votes cast)
Tags: Brands, gTLDs, ICAAN, Intellectual Property, top level domains, trade marks
Posted in Brands, Intellectual Property | No Comments »
