Archive for October, 2011
Monday, October 31st, 2011
Councils and other “relevant authorities” will be required under the Localism Bill to adopt a code of conduct consistent with the Nolan Principles of Public Life as a result of amendments tabled by the government on 27 October.
The Bill originally placed a duty on councils to promote and maintain high standards of conduct. However there was no requirement to have a code of conduct so there was no firm mechanism to ascertain whether Council’s were meeting the standards.
The move comes following claims that there are “serious deficiencies” in the Bill if it were implemented as originally drafted. Clearly, a code of conduct is a step forward in giving some clarity as to what the high standards might be.
However, to be effective, standards will not only need to be consistent between authorities but there will also need to be suitable sanctions for breaches of them. The challenge for councils will be having a fair, lawful and proportionate process including a right of internal appeal to enforce the code.
Helene Maillet-Vioud
0115 976 6213
hmaillet-vioud@brownejacobson.com
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Tags: local authorities, Localism Bill, Nolan principles of public life, standards of conduct by councils
Posted in Local Authorities, Regulatory | No Comments »
Monday, October 31st, 2011
A judge has ruled that four siblings receive damages after Buckinghamshire County Council’s Social Workers failed to protect them from very serious sexual abuse by their father. The highest award was £155,487; the lowest £12,000.
What makes this case unusual is the large discrepancy between the lowest damages award, and the highest award.
More significant still is the fact that this judge was prepared to find that, although social workers closed the file on 5 June 1993, a duty of care was owed to a child who had not even been conceived. Hampton, J pointed out that the risk posed by the father to “any child” in the family had been established. I do hope this finding is Appealed. If it is allowed to stand it could be the basis of broadening the category of people to whom social workers owe a duty considerably. There simply aren’t the resources to carry out risk assessments anticipating children who aren’t on the scene.
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: 9.0/10 (2 votes cast)
Tags: child protection, local authorities, safeguarding, Social Care
Posted in Local Authorities, Social Care | No Comments »
Monday, October 31st, 2011
The Health and Social Care Bill brings new duties to local government in the care they are required to deliver.
Bringing public health to a local level will involve engaging in and creating partnerships that connect local public services together. This will need time, resource and money, things which aren’t easy to come by these days.
Councils should remember that using their enforcement role they already play an important role in ensuring that the environment in which we live, work, and play enhances our health and so it may be possible to meet the new duties at minimal cost.
For example, a PCT recently commissioned a council’s housing team to undertake additional enforcement/inspection activity, combined with referrals to GPs/community health teams. Council inspectors reached members of the community who might otherwise not be seen by GPs and the project showed that enforcement had a role to play where landlords showed a disregard for their tenants’ health.
This is a good example of the NHS and a Council working together to perform their legal duties improving health outcomes.
Helene Maillet-Vioud
0115 976 6213
hmaillet-vioud@brownejacobson.com
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Tags: health and social care, Health and Social Care Bill, NHS, social and health care partnerships, Social Care
Posted in Health, Social Care | No Comments »
Monday, October 31st, 2011
The 2011 British Waterways Survey has shown a 9% increase on bat numbers since the same time last year.
British Waterways, which cares for 2,200 miles of canals and rivers in England, Scotland and Wales, conducts the survey annually from April to October.
The results are collected by volunteers who use the towpaths and canals and record their wildlife sightings.
It is positive news for conservation bodies at all levels who are working to increase Britain’s bat population.
And whilst many of us will not be looking forward to the prospect of another cold winter, the cold conditions are ideal for hibernation which will hopefully lead to us seeing even higher numbers in next year’s survey.
Posted by Jonathan Allen, who specialises in environmental law, specifically advising nature conservation, local authority and corporate clients and administrative law, with a focus on judicial review.
Jonathan Allen
0115 976 6572
jallen@brownejacobson.com
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Tags: bat population, british waterways, conservation bodies, environment, uk bats
Posted in Waste & Environmental | No Comments »
Friday, October 28th, 2011
From leaked documents discussing scrapping unfair dismissal rules to announcements that the qualifying period for a claim is going to be upped to 2 years, it is clear that issues around dismissing staff are high on the Government’s agenda.
This theme has continued this week with an announcement from Nick Clegg that he plans for employers to be able to have ‘protected conversations’ with employees. These are intended to be a way of allowing potentially uncomfortable discussions about performance management and retirement to happen without fear of being taken to an employment tribunal.
Many employers would agree that at times, the ‘cards on the table’ discussion could be a sensible way of managing a particular circumstance. However, what if such discussions contain discriminatory comments? Is it the Government’s intention that the employee would then be prohibited from referring to the discrimination in a tribunal? Whether this idea will ever be workable in practice remains to be seen.
Posted by Heather Bragg, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Heather Bragg
0115 976 6553
hbragg@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: discrimination, employment, employment tribunal, protected conversations
Posted in Employment | No Comments »
Thursday, October 27th, 2011
The European Court of Justice (ECJ) has followed the Advocate General’s opinion by dismissing an appeal against the General Court’s ruling that Pepsi’s design registration for “pogs” was invalid.
The design was previously ruled invalid because it did not create a different overall impression on the informed user than an earlier Promer design. A key facet of Pepsi’s appeal was that the General Court had incorrectly defined the “informed user” and his level of attentiveness.
The ECJ disagreed with Pepsi and stated that informed user lies “somewhere between … the average consumer… who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks in conflict, and the sectoral expert, who is an expert with detailed technical expertise”.
Although this is a welcome clarification, this case concerned a very simple design, and it seems likely that the courts will continue to grapple with this concept in less straightforward design fields.
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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Tags: community designs, ECJ, European Court of Justice, Intellectual Property, ip, pepsi, pogs, product design, registered designs, Trade Mark, trade marks
Posted in Intellectual Property | No Comments »
Wednesday, October 26th, 2011
Kenneth Clarke today (26 October) set out his proposals for a ban on referral fees in the form of draft amendments to the Legal Aid Sentencing and Punishment of Offenders bill.
Clarke’s solution excludes the creation of a criminal offence but instead relies on regulation enforced by the FSA, Claims Management Regulator, Law Society and Bar Council. Rather than setting out a comprehensive regime, Clarke relies on powers to create secondary legislation and regulatory rules to bring the ban into effect.
The initial ban would be confined to claims relating to injury or death, with the Lord Chancellor empowered to extend the categories. An exception is included for payments in relation to services (eg advertising) but the Lord Chancellor may limit the sums payable to control this potential loophole.
The proposals set out by Clarke are a measured response to referral fees which, in light of the cross- party support for a ban, should have good prospects of surviving the remaining stages of this bill’s passage.
Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.
James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com
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Tags: claims management regulator, FSA, insurance, Kenneth Clarke, law society, legal aid, punishment of offenders, referral fees, regulatory rules
Posted in Insurance, Regulatory | No Comments »
Wednesday, October 26th, 2011
A father of a child with Down’s Syndrome is challenging a local authority’s (LA) decision to cease funding his 22 year old daughter’s education. He wants her education to continue until she is 25.
This case will hopefully clarify LA obligations around when they can lawfully cease to maintain a statement of SEN. Current guidance recommends LAs maintain statements until the age of 19. Yet the proportion of children and young adults with Down’s Syndrome staying longer in schools continues to increase. If the Court of Appeal decides that a LA should educate a pupil with SEN until they reach 25, it will force LAs to carefully examine the provision for these individuals alongside younger students, both practically (e.g. safeguarding) and financially.
The outcome of this case is awaited by many interested parties. However, the Court of Appeal have rightly reserved judgement to a later date. This case will require careful scrutiny and a sound grasp of the wide-ranging consequences on all those affected by the decision.
Laura Richards
0115 976 6249
lrichards@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: child education, downs syndrome, Education, education authorities, education rights, local authorities, sen
Posted in Education, Public Sector | No Comments »
Friday, October 21st, 2011
All Claimants have a duty to mitigate their loss for the purpose of claiming compensation in the Employment Tribunal. But how far does this duty go when offered redeployment by their employer?
In the case of Debique v Ministry of Defence the Claimant succeeded in her claim for indirect race and sex discrimination. However the Court of Appeal held she had failed to mitigate her loss by rejecting redeployment which would have provided stability and addressed her childcare difficulties. Therefore there was no award for loss of earnings; only for her injured feelings.
Claimants will argue that it is unreasonable to expect them to continue working for an employer when they have suffered discrimination. However, the size of the army and the number of bases around the country was a factor in this particular case. Large multinationals or retailers therefore may be able to rely on this decision when a Claimant has been offered and refused a role at another location working with different individuals.
Posted by Gemma Steele, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Gemma Steele
0121 237 4561
gsteele@brownejacobson.com
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Rating: 8.0/10 (3 votes cast)
Tags: court of appela, debique v ministry of defence, discrimination, employment, retailers
Posted in Employment, Retail | No Comments »
Thursday, October 20th, 2011
The government has launched a two year inquiry into the exploitation of children by gangs following a report by Bedfordshire University. Current data, based on limited reporting, indicates that 10,000 children may be affected and that children in local authority care are four times as likely to experience sexual exploitation as those who are not.
The inquiry will be conducted by The Office of the Children’s Commissioner, exercising its powers under the 2004 Children’s Act to investigate the scale of the problem. Local authorities and the judiciary will be forced to provide information about child exploitation for the first time. One of the key issues seems to be that less than half of Local Safeguarding Children Boards collect data on exploitation and three quarters of Councils are said to have failed to put in place the 2009 government guidance to protect children from exploitation.
No doubt both of these concerns will be covered when the government sets out its strategy for dealing with the problem. An interim report is due in July 2012 and is likely to give more detail on the full extent of the problem.
Kate Bear
0115 976 6104
kbear@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: 2004 children's act, bedfordshire university, local authorities, safeguarding, sexual exploitation, the office of the children's commissioner
Posted in Education, Local Authorities, Social Care | No Comments »
Thursday, October 20th, 2011
Andy Slaughter, the Shadow Justice Secretary, yesterday put forward his proposals to abolish referral fees, as amendments to the Legal Aid, Sentencing and Punishment of Offenders bill. These include:
- criminalising referral fee arrangements, though only in relation to road traffic claims
- a criminal offence of sending electronic communications or making telephone calls to induce a person to make an injury claim
- no damages for whiplash arising from road traffic accidents with an impact speed less that 5 mph, unless the Claimant has a particular susceptibility to injury
- additional regulation of cold calling and of claims management companies by the Information Commissioner and Legal Services Ombudsman
This mirrors Jack Straw’s Motor Insurance Regulation Bill, and runs into the same difficulties. Effective enforcement of the criminal aspects will be difficult, given the Claims Management Regulator’s past experiences and the high standard of criminal proof. The whiplash proposals will give rise to evidential issues over impact speeds and vulnerability.
Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.
James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: andy slaughter, information commissioner, legal aid, legal services ombudsman, motor insurance regulation bill, referral fees, road traffic claims, shadow justice secretary
Posted in Insurance, Regulatory | No Comments »
Thursday, October 20th, 2011
The Patents County Court was revamped this time last year with its principle objective being to promote access to justice at proportionate cost for SMEs and other parties involved in lower value IP disputes.
The damages cap which is to be applied to claims in the Patents County Court has now been formally extended to all claims brought in that court (previously it applied only to patents and designs). A sensible move, ensuring that claims relating to all intellectual property rights are brought into line with the court’s objective. With the PCC having dealt with over 100 new cases in the last year, it is apparent that parties have the confidence to resolve their disputes using the reformed process in the court.
Posted by Mark Daniels, who specialises in intellectual property dispute resolution involving infringement and validity of patents, trade marks, designs and copyright, as well as reputation management and domain name disputes.
Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com
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Tags: coyright, Intellectual Property, lower value ip disputes, Patents, patents county court
Posted in Intellectual Property | No Comments »
Thursday, October 20th, 2011
A recent landmark ruling in the Upper Tribunal between the Independent Schools Council (ISC) and the Charity Commission is likely to see wide-ranging implications for fee paying schools. The tribunal determined that the commission’s guidance was ambiguous and, in places, wrong in law and would need to be re-written.
The decision clarified that independent schools have to demonstrate a wider public benefit and it is the responsibility of the trustees to decide how to satisfy that test. This will allow trustees to be innovative and creative with their charitable provision rather than being constrained by calculations of bursaries. Interestingly, the sponsorship of academies (or indeed creation of a free school) was one route which an independent school could take to further demonstrate satisfaction of the public benefit test. Given that “free schools” were mentioned in the original charity legislation in 1601, it would appear that charity law has come home!
Laura Richards
0115 976 6249
lrichards@brownejacobson.com
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Rating: 8.0/10 (1 vote cast)
Tags: academies, charity commission, Education, fee paying schools, free schools, independant schools, independant schools council, upper tribunal
Posted in Education | No Comments »
Thursday, October 20th, 2011
The Coalition Government’s Energy Bill became law today. The Department for Energy and Climate Change (DECC) is concerned that more than half of UK homes have insufficient insulation and say “It is vital, therefore, that action is taken to address home energy efficiency”.
The Energy Act establishes the legal framework for the “Green Deal”, to be launched next year. The aim is to provide finance for homeowners to install energy saving measures such as improved insulation. The loan will be repaid through the savings on energy bills. The likes of British Gas and HSBC have joined forces to provide the finance, though it is yet to be seen what level of interest homeowners will be charged.
The Energy Act also tightens up the requirements for privately rented accommodation, making it unlawful from 2018 to rent a house or business premise that has less than an “E” energy efficiency rating.
It remains to be seen whether the Energy Act and the Green Deal are successful in improving home efficiency.
Kassra Powles
0115 908 6200
kpowles@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: British Gas, colalition government, E energy efficiency, energy bill, energy bills, green deal, the department for energy and climate change, the enery act
Posted in Waste & Environmental | No Comments »
Wednesday, October 19th, 2011
A recent survey by the shadow children’s minister Sharon Hodgson suggests that 80% of local authorities in England have cut funding to children’s centres in the past year, and that 90% plan to implement cuts in 2012. This is in addition to almost 50 centres which have already, or will be, closed.
There are approximately 3,600 children’s centres in England, 50% of which are in some of the most deprived areas. They are essentially a “one-stop shop” bringing together a full range of services offering support and guidance to parents to help them support their children’s development and learning.
Necessary savings in budgets required today may simply be postponing a greater costs burden in the future if the opportunity for early intervention is lost, and things go wrong later on.
Posted by Ceri-Sian Williams, who specialises in defending claims brought against social services
Ceri-Sian Williams
0115 976 6563
cwilliams@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: budgets, children's centres, children's minister, local authorities, local authority cuts, Sharon Hodgson
Posted in Local Authorities, Social Care | No Comments »
Wednesday, October 19th, 2011
Early in 2012, the NHS Constitution will be amended again, to add:
- An expectation that staff raise concerns at the earliest possible opportunity
- Clarity around the legal rights of staff when raising such concerns
There may also be an independent authority for staff to turn to when they feel that their organisation is not listening or responding appropriately.
NHS employers will need to review and update their existing whistleblowing policy in light of these changes, and we can expect a surge of whistleblowing employment tribunal claims.
The Constitution was published in January 2009, to be reviewed every 10 years, but was revised in March 2010 to add further patient “rights” eg to treatment within 18 weeks. Our experience is that the more the language of “rights” is used, the more people litigate when expectations are not met.
Posted by Gemma Steele, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Gemma Steele
0121 237 4561
gsteele@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: employment, employment tribunal, legal rights of staff, NHS constitution, whistleblowers
Posted in Employment, Health, NHS | No Comments »
Wednesday, October 19th, 2011
The annual report on NHS complaints handling by the Parliamentary and Health Service Ombudsman, Ann Abraham, published today (18 October), makes for familiar reading.
The NHS Constitution promises that mistakes will be acknowledged, and things put right quickly and effectively, but all too often the process of dealing with complaints is another unhappy experience for all involved, and last year the Ombudsman recommended £500,000 in compensation for poor complaints handling. The litigation that followed would have been much more costly.
Particularly eye catching in the report, and extensively covered by the media, is the issue of GP practices removing patients from their list after a complaint, which comes at a particularly bad time as greater control over the health service is handed over to GPs.
Alongside the proposed new duty of candour, the ever rising gap between expectations and resource limited delivery, will make dealing with complaints effectively more difficult and more important than ever.
Posted by Ben Troke, who specialises in clinical negligence; health law; access to NHS and social care and funding; Court of Protection / Mental Capacity Act; Deprivation of Liberty Safeguards; NHS Constitution and patient rights.
Ben Troke
0115 976 6263
btroke@brownejacobson.com
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Tags: Ann Abraham, complaints, Duty of candour, GPs, NHS, NHS complaints handling, parliamentary and health service ombudsman
Posted in Health, NHS | No Comments »
Wednesday, October 19th, 2011
In a warning to those who seek to help claimants exaggerate claims, two relatives of a claimant in a personal injury claim have been held to be in contempt of court for deliberately creating a false impression that she suffered from very limited mobility in an attempt to inflate her claim.
Thereza Daoud suffered serious head injuries when she was hit by a bus and presented a claim for personal injury for several million pounds. The defendants obtained video surveillance which showed she was presenting a “deliberately false picture” to the defendant’s medical experts which resulted in her claim being settled for only £40,000.
Proceedings for contempt of court were brought against her husband two daughters with the High Court finding that the husband and one daughter had signed false statements of truth and deliberately given a false impression to the experts. A further hearing will be held to determine what sanction should be applied.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 10.0/10 (6 votes cast)
Tags: contempt of court, exaggerated claim, fraud, insurance fraud, motor insurance fraud, road traffic accidents, steven conway
Posted in Insurance, Litigation | No Comments »
Wednesday, October 19th, 2011
A recent DfE study shows that more than 4 in 10 allegations made against teachers and teaching staff by pupils are ‘malicious’ or unfounded. Fewer than 3% of allegations directed at teaching staff resulted in a criminal conviction.
New guidance on managing allegations against staff was issued by the Department for Education earlier this year. It replaces the guidance contained within chapter 5 of the 2007 DCSF guidance ‘Safeguarding Children and Safer Recruitment in Education’ and in line with the government’s aim to reduce red tape, the new guidance extends to a mere 10 pages. Interestingly, the threat of malicious allegations is prominent within it, with two of the five ‘key points’ dedicated to it. And the government does not intend to stop there – under the Education Bill teachers will get the right to anonymity until the time they face criminal charges.
The government’s direction of travel is clear and this study certainly supports its approach.
Posted by Dai Durbridge, who specialises 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)
Posted in Education, Employment, Further Education, Public Sector | No Comments »
Wednesday, October 19th, 2011
The advertising watchdog, The Advertising Standards Authority (ASA), has today (19 October) banned a promotional campaign by Shell UK Ltd for misleading motorists.
According to the ASA a flyer campaign by the energy giant which said customers could ‘save up to 1 litre per tank* at no extra cost’ were misleading, exaggerated and could not be substantiated because the company could not prove that at least 10% of vehicles in the UK would save one litre in every 50 litre fill up.
This judgement is a big blow to the energy giant’s latest campaign and possibly its credibility with the motorist who is already facing sky high prices at the pumps.
Shell should have carried out its tests on a statistically significant proportion of cars on the UK market – the ASA suggested 10% – before claiming all cars on the UK market would achieve the saving.
This is an important reminder to companies to ensure any claims they base their marketing campaigns around are significantly sound and scientifically robust.
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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Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
