Archive for November, 2011
Monday, November 21st, 2011
Social Care Practitioners and adopters have been invited to share their views about the Treasury’s “rapid review” of adoption services. It certainly is rapid. Some may think the deadline is too short to allow for sufficiently broad range of feedback.
The letter is dated 14 November 2011, and asks for feedback on its 24 questions by Monday 28 November 2011. We are also saddened to see how little publicity this has received.
When there are changes we hope to see them introduced after widespread training, and led by experienced practitioners. If that doesn’t happen we can expect to see more litigation from adopters, children and their birth families in the future as those Social Workers who have to spearhead changes break new ground.
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: 10.0/10 (1 vote cast)
Tags: adoption, adoption services, government, Social Care, social care practitioners, social workers, treasury
Posted in Social Care | No Comments »
Friday, November 18th, 2011
Munir Yakub Patel, an administrative clerk, made legal history today after being handed a three-year prison term for bribery and ordered to serve six years concurrently for misconduct in a public office.
Patel pled guilty on October 14 this year to requesting and receiving a bribe intending to improperly perform his functions, contrary to Section 2 of the Bribery Act. Patel was charged in relation to his employment at Redbridge Magistrates Court and was the first person charged since the Act came into force.
The imposition of a prison sentence for a relatively minor instance of bribery shows very clearly that the Act will not just be used against big corporates and sends a powerful message to individuals and smaller businesses. If businesses have not yet put in place suitable procedures to ensure compliance with the Act then this case should serve as a reminder as to why they need to so. The threat of unlimited corporate fines and prison for employees is very real.
Matthew Woodford
0121 237 3965
mwoodford@brownejacobson.com
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Tags: bribery, bribery act, browne jacobson, criminal proceedings, employment, Public Sector, Regulatory
Posted in Commercial contracts, Competition, In-house Lawyers, Public Sector, Regulatory | No Comments »
Friday, November 18th, 2011
Plans have been unveiled showing how the Isle of Wight intends to become self sufficient by 2020.
A community group behind the plans, Ecoisland, presented 14 objectives to Parliament outlining how it intends to not only become self sufficient, but also become a net exporter of energy. Ecoisland has said that power for the population of 142,500 could come from a combination of solar panels, tidal and geothermal power and a waste-to-energy plant.
The Ecoisland project has had support from industry, with Koji Iwama, the CEO of Toshiba Europe saying the project was a “model community” that could help push the UK to the forefront of energy efficiency.
The scheme is not without its difficulties though. Experts have said that completing the project by 2020 will be “a challenge,” and Dr Eyre from Oxford University has said that whilst he thinks it is “exciting,” the whole project will require “a wide range of individuals and organisations to take on major technical, social, and cultural changes.”
Kassra Powles
0115 908 6200
kpowles@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: energy efficiency, environment, green energy, isle of wight, kassra powles, self sufficiency
Posted in Projects & partnerships, Waste & Environmental | No Comments »
Friday, November 18th, 2011
The Food Standards Agency (FSA) has launched a consultation on whether to remove the controls remaining on UK farms imposed after the Chernobyl disaster 25 years ago. The disaster caused a plume of radioactivity to travel across Europe and deposit on upland areas in the UK. Restrictions had originally been in place on 9800 farms, but today only 342 farms are still affected by restrictions, 334 of them in Wales.
The FSA has recently carried out extensive surveys of radio caesium levels in sheep on the restricted farms, finding that the levels rarely exceeded the permitted limit and the risk posed to consumers is now very low.
A spokesperson said “The control measures are now no longer considered proportionate to the very low food safety risk and are no longer required to comply with European food safety law.” The control measures were originally issued to comply with the food safety standards set out in EC Directive 96/29/Euratom.
The consultation closes on 8 February 2012.
Kassra Powles
0115 908 6200
kpowles@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: browne jacobson, environment, food safety controls, food safety laws, food standards agency, health
Posted in Food & drink, Government bodies, Health, Health & Safety | No Comments »
Friday, November 18th, 2011
On 14 November 2011 Coronation Street became the first UK prime time show to feature product placement advertising, following a relaxation of TV product placement rules last February.
Contrary to the predicted deluge of brands to be thrust onto viewers’ screens, this first product placement in the ITV soap takes the rather mundane form of a Nationwide cash machine appearing in Dev Alahan’s corner shop. There will also be a branded swing-board outside the store.
Product placement undoubtedly offers a potentially lucrative income generation model, with Ofcom predicting that the industry could be worth up to £30m a year. Despite some who worry that product placement is essentially subliminal advertising, and may be a challenge to the traditions of British broadcasting, the safe guards such as a small letter ‘p’ shown on screen during the programme credits will be a clear warning to viewers.
At least the residents of Coronation Street can rest easy, knowing their money is no longer being held in a fictional bank.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 9.3/10 (3 votes cast)
Tags: advertising, Brands, browne jacobson
Posted in Advertising & Marketing, Brands, Regulatory | 1 Comment »
Friday, November 18th, 2011
A media frenzy has broken out over claims that bureaucrats in Europe have delivered a ruling which states that water sold in the EU can not claim to protect against dehydration!
But “Don’t always believe what you read”! The decision made by the European Food Standards Agency is in relation to an application made that claimed water reduces risk of the disease that is dehydration. There are specific regulations that govern what must be proved before a reduction in disease claim may be made. Water did not meet these criteria. However, Europe has confirmed that water may claim that it is important for the maintenance of normal physical and mental performance.
The Nutrition and Health Regulations have been around for some years now, but the impact of them is only just starting to be seen as European scientists have been busying themselves for many years testing the efficacy of over 40,000 nutrition and health claims. It is so important that business take the time to understand the ramifications of often complex decisions, as they don’t always necessarily say what you thought they first said.
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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Tags: european bureaucrats, european foods standards agency, food, the nutrition and health regulations, water
Posted in Advertising & Marketing, Brands, Food & drink | No Comments »
Friday, November 18th, 2011
Retailers are reeling from the latest data announced by the Office for National Statistics! The data indicates a 0.7% growth in value of UK sales in October from the previous month as well as a 5.4% growth from the previous year.
The British Retail Consortium was quick to accuse the ONS of producing sales figures that “paint an overly rosy picture” of shopping in the UK. In truth, sales will have been generated by the early and heavy discounting by retailers. However, everyone knows that the practice of offering discounts cannot carry on long term without a negative impact on the retailers.
The BRC is keen to ensure that this “rosy picture” does not distract the Government from looking at ways to help struggling retailers. Planned increases in fuel duty, rises in business rates and unemployment have not gone away. Now is not the time for creative festive cheer…..
Posted by Sarah Parkinson, who specialises in property development and retail; heads up commercial property development practice, dealing with complex projects and commercial property transactions, including options and development agreements.
Sarah Parkinson
0115 976 6575
sparkinson@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: brc, British Retail Consortium, browne jacobson, office of national statistics, ons, retail sales, retail sales growth, sarah parkinson
Posted in Retail | No Comments »
Wednesday, November 16th, 2011
Where an allegation has been made by a pupil, the Education Act 2011 now makes it an offence for anyone to publish information about the teacher before charges are brought. ‘Publish’ is widely defined and would include the internet and other public communication, including Twitter.
Two questions pose themselves. Why do teachers require this special level of protection? Will it ensure that no-one finds out about the allegation until charges are brought?
In theory at least, the law is designed to stop the “devastating consequences” for teachers who face fabricated allegations, but it is hard to see how the consequences suggested are greater than those faced by a person falsely accused of a serious sexual offence. Many will also ask why these plans for anonymity do not extend to protect other staff, including teaching assistants and teachers at further education colleges. Are their consequences any less devastating?
In reality, whilst publication in newspapers and on the internet may now be prohibited, the real damage is done by the local gossip resulting from an allegation being made. This new law can have no impact on that.
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: 5.5/10 (2 votes cast)
Tags: allegations against teachers, education act, education act 2011, protecting teachers from malicious allegations, teacher anonymity
Posted in Education | No Comments »
Friday, November 11th, 2011
On 2 November 2011, the British Supreme Court unanimously ruled in favour of Human Genome Sciences Inc. (HGS) in its dispute with Eli Lilly & Co, over the validity of a patent for a protein and gene sequence, Neutrokine-α.
Overturning the unanimous decisions of the Court of First Instance and the Court of Appeal, the Supreme Court has set an important precedent.
Based on knowledge of similar gene sequences, HGS claimed that Neutrokine-α could be used to treat conditions involving the immune system. The Court of Appeal held the patent held invalid for lack of industrial applicability as its use was too speculative.
The Supreme Court, having clearly been influenced by the wider consideration of public policy, held that the use of the gene need not be demonstrated, but must only be plausible. The decision has lowered the hurdle for patentability and has relaxed the standard of industrial application – an ‘educated guess’ for the use of an invention can now suffice.
Eli Lilly & Co still consider the patent is invalid, and the case is now likely to return to Court to determine the issues of obviousness and insufficiency.
Posted by Peter Ellis, who specialises in commercial litigation or dispute resolution; intellectual property disputes e.g. trade marks, copyright, designs issues; breach of contract and claims through interruptions to trade.
Peter Ellis
0115 976 6269
pellis@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: british supreme court, eli lilly& co, human genome sciences Inc, neutrokine-a, Patents
Posted in Intellectual Property | No Comments »
Friday, November 11th, 2011
The TES reports that the Advisory, Conciliation and Arbitration Service (ACAS) has seen a marked increase in employee disputes in schools. Though Unions are perhaps unsurprisingly attempting to link this rise to the expanding academies programme, it is more likely a consequence of the financial climate which has led to a number of redundancies in schools and a renewed focus on performance management.
Both the private and public sector have seen a rising number of employee-related disputes. There is no evidence that this has any link to academies. Though ACAS figures show employee disputes in academies have risen from 10 in 09/10 to 38 in 10/11, the obvious reason for this is because there are some 1,000 more academies than there were before, so ACAS is more likely to be called into them.
Since academies lie outside local authority control they, like any other company, need to ensure that they protect themselves from damaging conflicts with employees and procure appropriate HR advice. However, just like the conversion process itself they will have to ensure they have open and transparent communications with their staff.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: academies, advisory concilation and arbitration service, employee disputes, local authority, unions
Posted in Education, Employment | No Comments »
Friday, November 11th, 2011
Case law has already established that workers continue to accrue annual leave entitlement during sickness absence and that this annual leave can be taken at the same time as the sickness absence.
However, in Fraser v St George’s Hospital the employment appeal tribunal held that in order to exercise this right an employee must notify their employer of their intention to take annual leave in line with requirements of the Working Time Directive. An employer does not need to pay accrued annual leave when the employment relationship ends if the employee has not previously requested the annual leave.
On the face of it it can only be good news for employers particularly as the EAT expressly stated that there is no duty on an employer to inform employees of their rights in these circumstances. However, given the number of inconsistent decisions on this issue it will come as no surprise if it is appealed.
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: annual leave, employment appeal tribunal, fraser v st george's hospital, sickness absence, working time directive
Posted in Employment, Health | No Comments »
Friday, November 11th, 2011
The High Court has put a stop to Before the Event (“BTE”) insurers’ practice of refusing to pay for a policyholder’s own choice of solicitor unless they sign up to ultra-low ‘panel’ rates.
In Webster Dixon v Equity Syndicate, the court ruled that the practice of BTE insurers seeking to impose their rates on policyholders’ solicitors breached European regulations designed to protect policyholders’ freedom to choose their own lawyers. The court held that this widespread practice watered down a policyholder’s choice as their preferred lawyer may refuse to accept the low rates that BTE insurers insist upon.
Many groups have hailed the decision as a victory for access to justice, although there is a fear in some camps that it will only serve to increase premiums, making them unaffordable for many, thereby having the opposite effect.
Only time will tell what the long-term effect of this decision will be, although we may be in for a long wait, with many commentators predicting an appeal.
Posted by Tim Johnson, who specialises in professional indemnity claims; defending professionals in the property, legal, financial services and IT sectors; also advises in relation to insurance coverage disputes.
Tim Johnson
0115 976 6557
tjohnson@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: before the event, bte insurers, webster dixon v equity syndicate
Posted in Insurance | No Comments »
Thursday, November 10th, 2011
The doctrine of vicarious liability establishes that an employer is liable for the acts or omissions of its employees. It was founded on a two stage test: (1) is the relationship (normally one of employment) one to which the principles will apply; and (2) whether the act or omission was within the scope of employment.
Case law has chipped away at the doctrine, ever widening the relationships that now seem to give rise to vicarious liability. Mr Justice MacDuff’s judgment in JGE yesterday was no exception. It widened the first stage further to include a situation whereby the key elements of “employment” did not figure.
Although Mr Justice MacDuff said that the doctrine is not “infinity extendable”, previous judges made the same point before adding one more little extension. Mr Justice MacDuff’s judgment was no different. So where does that leave us? Potentially analogous facts to those relevant in this case are easy to imagine; the relationship between foster carers and local authority springs to mind. Mr Justice MacDuff’s judgment by no means opens the door for such claims, but he may well be offering a key to a previously locked door.
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: 0.0/10 (0 votes cast)
Tags: case law, Education, employers liability, fostercare, JGE, local authorities, Social Care, vicarious liability
Posted in Education, Social Care | No Comments »
Thursday, November 10th, 2011
Examples of possible interim governance documents for pathfinder clinical commissioning groups (CCGs) have this week been shared via the Pathfinder Learning Network. The documents have been co-produced by NHS North East and its pathfinder CCGs.
The documents contain a template interim constitution for pathfinder CCGs and associated documents relating to the involvement of CCGs in PCT/cluster decision-making via a committee structure.
Although these documents are likely to be a useful reference point, they may not be appropriate for every CCG and, if used, they will need to be tailored to individual CCG circumstances. It is also worth noting that, as we are in an interim stage pending CCG authorisation, they will also need to be kept under review as the requirements for CCGs develop.
Posted by Emily Birkett, who specialises in advice to NHS bodies ; their local authority partners and related organisations in commercial law, contracting, procurement , competition governance and all aspects of primary care.
Emily Birkett
0121 237 3934
ebirkett@brownejacobson.com
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Tags: CCG's, clinical commissioning groups, health, NHS, pathfinders
Posted in Health, NHS | No Comments »
Thursday, November 10th, 2011
“Deprivation of Liberty” has always been a slippery concept, in a health and social care setting, but with huge risks – damages legal costs, and adverse publicity – if you get it wrong.
A Court of Appeal Judgment yesterday (P v Cheshire West and Chester Council, 9 November) has totally changed the way we will have to look at this, overruling an earlier judgment that a 39 year old man with learning disabilities and autism, who lacked capacity to make decisions about his accommodation and care was deprived of his liberty.
Staff had complete and effective control of his life, sometimes using a “body suit” zipped at the back to prevent him getting to his continence pads, which he had a habit of eating. The Court of Appeal said, in essence, that this care was required as a result of his condition, was “normal” for people like him, and therefore no deprivation.
This seems close to going full circle to before DOLS, deferring to a clinical assessment and an idea of “necessity”.
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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Rating: 10.0/10 (2 votes cast)
Tags: ben troke, browne jacobson, capacity to make decisions, clinical assessment, Court of Appeal, deprivation of liberty, dols, health
Posted in Health, Social Care | No Comments »
Wednesday, November 9th, 2011
Dyson has lost its appeal against the High Court’s decision that Vax’s Mach Zen vacuum cleaner does not infringe Dyson’s registered design for its DC02 vacuum cleaner.
The High Court had dismissed Dyson’s infringement claim on the basis that the Mach Zen produced a different overall impression on the informed user. Dyson appealed the decision but the Court of Appeal dismissed the appeal emphasising that the key legal issues was whether the Mach Zen did or did not produce on the informed user a different overall impression and, in this case, the Mach Zen did indeed produce a different overall impression with the court noting that there were in fact ‘substantial differences’.
This case is a reminder that even if you have broad registered design protection, the use by a third party of a similar design will not amount to infringement if that design produces a different overall impression on the informed user (a knowledgeable user of the product).
Posted by Sara McNeill, who specialises in non-contentious intellectual property matters, including licensing, franchise, collaboration and development arrangements and IP audits and strategy; experienced in drafting and advising on commercial agreements.
Sara McNeill
0121 237 3930
smcneill@brownejacobson.com
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Tags: appeals, design protection, Dyson Ltd, High Court, Intellectual Property, ip infringement, product design, Retail, Vax Ltd
Posted in Brands, Intellectual Property, Retail | No Comments »
Wednesday, November 9th, 2011
Today the LGO published their report highlighting failures of admissions authorities when conducting admission appeals. The statistics in the report support the view that some admissions authorities get it wrong, but a bigger picture is being missed.
Traditionally admissions authorities were part of the local authority. However, academies can (and most do) act as their own admissions authority. For high performing academies particularly this presents a stressful and expensive problem – parents using the Admissions and Appeals Codes to put academies under enormous pressure during the appeal process.
It is not uncommon for parents to ask upwards of 30 questions before an appeal, employ a professional advocate to put their case and for individual hearings to last in excess of two hours. For an over-subscribed academy facing 30+ appeals, this results in a massive increase in cost – money that could be spent on education.
And the outcome if questions go unanswered or an appeal hearing cut short? A finding of maladministration.
I doubt this is what Mr Gove had in mind when promoting the freedom of academy status or what his predecessors envisaged when drafting the Codes.
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)
Tags: academies, admission appeals, admissions and appeals codes, admissions authorities, schools
Posted in Education, Local Authorities | No Comments »
Wednesday, November 9th, 2011
Yesterday Mr Justice MacDuff gave his long awaited decision in favour of claimant JGE, who claims she was sexually assaulted by a Portsmouth priest Father Baldwin. The issue was whether the diocesan bishop could be vicariously liable for the wrongful acts of the priest.
The judge found that despite the facts that there had been no formal contract between the church and Father Baldwin, he was provided with the premises, the pulpit and the robes. Justice MacDuff added : “He had immense power handed to him by the defendants. It was they who appointed him to the position of trust, which (if the allegations be proved) he so abused.”
The question we now need to consider is whether this judgment is specific to its facts, or whether it may be extended by analogy to cover religious leaders of different faiths.
Unsurprisingly, given the potential ramifications, the church has been given permission to appeal.
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: 0.0/10 (0 votes cast)
Tags: children's services, Mr Justice MacDuff, portsmouth priest father baldwin, sexual assult
Posted in Social Care | No Comments »
Tuesday, November 8th, 2011
Two local authorities have recently reported concerns about the high caseloads social workers have to manage. Cardiff City Council have received a 36 – 38% increase in referrals whilst Kent said that its social workers managed caseloads of more than 40 cases, and sometimes up to 60 or 70.
Although measures have been taken by both local authorities to relieve the pressures, social workers are concerned that the quality of care provided to vulnerable children will be reduced, and that something could go seriously wrong. These authorities do not find themselves in a unique position. The challenge for all authorities is to balance the necessary savings they need to make with the needs of some of the most vulnerable in society.
However, forced savings today could represent a false economy tomorrow. If those children in care now consider that the service provided to them by their social worker is inadequate future negligence claims could result, costing authorities and insurers six-figure sums to manage.
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: high caseloads, negligence claims, quality of care, social workers, vulnerable children
Posted in Local Authorities, Social Care | No Comments »
Tuesday, November 8th, 2011
Stories are hitting the newspapers this week that stores on some depressed high streets are being let for £1 rent so that landlords can avoid paying business rates on vacant units. This follows the British Retail Consortium’s challenge to the Chancellor, George Osborne, to re-think the proposed increase in 2012’s uniform business rates in line with September’s RPI figure which could mean an increase of 5.6% .
Mary Portas’ High Street Review is set to be published next month, where business rates may well be discussed. As rates increases are not set to kick in until April 2012, it is unlikely we have heard the last on this. If the government doesn’t step in, we may see an increase in these £1 rent lettings with a possibility that tenants in depressed areas ask their landlords for reductions in rent to cope with the increase with the alternative being a vacant unit.
Posted by Sarah Parkinson, who specialises in property development and retail; heads up commercial property development practice, dealing with complex projects and commercial property transactions, including options and development agreements.
Sarah Parkinson
0115 976 6575
sparkinson@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: British Retail Consortium, George Osbourne, high street review, high streets, landlords, Mary Portas
Posted in Property, Retail | 1 Comment »
