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

This is perhaps a non-story because last week, the EU Consumer Rights Directive came into force. This requires the UK to make a number of changes to consumer law (some positive, some negative) by December 2013 (including such a ban), so that consumer protection is fully harmonised across the EU. But the Government does propose to put a ban in place earlier, in 2012.

To get a PR advantage over slower competitors, businesses might want to make the changes to their terms and conditions and websites before they become mandatory. Consider it an early Christmas present to your customers!

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

Critics have pointed out that as more and more schools convert to academies the proposed changes may be pointless since academies have freedom over their curriculum.

There are currently 1,463 academies open (the majority of which are secondaries) and hundreds more academy conversions are in the pipeline. In addition, the government has made it clear that poorly performing schools will be forced to partner-up with outstanding schools and become academies.

If the pace of conversions keeps up, the number of schools affected by the change in curriculum will be few and far between. The government hopes academies will voluntarily adopt the changes come 2014, but will not be able to guarantee this will be the case.

Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com

• an initial fee of £150-£250 to bring a claim, with an additional fee of £250-1,250 if it goes to hearing, with no limit on the maximum award,or

• a single fee of £200-600 and a £30,000 limit on the maximum award (with the option to pay an additional £1,750 if an award over £30,000 is sought)

Last year the tribunal system cost the taxpayer £84 million to run. The primary aim of the fee is to ensure claimants make a contribution towards this cost. From an employer’s perspective, however, this should also discourage claimants from bringing claims and reduce their expectations of the maximum award that they may obtain if successful. This in turn should assist employers in recruiting without fear of such claims being brought.

Posted by Hayley Prescott, who specialises in employment law, both contentious and non-contentious, including tribunal claims, unfair dismissal, redundancy, policies and procedures, compromise agreements, contractual issues and general advisory work.

Hayley Prescott
0115 976 6116
hprescott@brownejacobson.com

The formula must be carefully thought out, with a fair adjustment of secondary to primary school funding, recognition that current deprivation funding (i.e. the pupil premium) is geared strongly towards secondary schools and recognise that some of the most deprived parts of the country ought to receive extra funds.

IFS asserts that any transitional period of less than a decade will involve significant, sustained losses for some schools. With the coalition’s reputation for rapid change in the education system it will be interesting to see whether they follow the IFS’s recommendations on the transitional period.

Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com

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

The consultation proposes to introduce obligations for providers to always be open with patients about incidents where things go wrong into the NHS Standard Contracts for acute, community, ambulance and mental health services.

Sanctions could include, amongst others, a deduction in the annual contract value, independent investigation or a written apology to the patient from the organisation’s Chief Executive.

The duty is purported to have the potential to support the development of stronger commissioner-provider relationships and to improve quality. However, it isn’t yet clear how the duty would interact with or improve upon existing duties to let patients know when things go wrong or whether patients would gain any additional support or direct benefit from the existence of a statutory, as opposed to a non-statutory, duty.

If you would like to contribute to the consultation click here.

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

This week the government also announced its plans for stepping up funding into setting up free schools in areas where there are shortages of pupil places.

Pupils in the new models of educational establishments are able to benefit from greater freedoms, the ability to innovate and to raise standards. Ministers hope that the range of schools available now to parents, such as academies, Free Schools and Studio Schools, will help transform the attainment and achievement of pupils in England.

Laura Richards
0115 976 6249
lrichards@brownejacobson.com

The qualifying period of service for claiming unfair dismissal used to be two years, before it was successfully challenged in Europe in the late 1990’s as being indirectly discriminatory against women. It will be interesting to see if such a challenge is brought following this latest announcement, and whether such a challenge would stand up.

Posted by Tom McLaughlin, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.

Tom McLaughlin
020 7337 1033
tmclaughlin@brownejacobson.com

Shopkeepers who do not enforce the charge or fail to keep records face financial penalties. Welsh Environment Minister John Griffiths says the aim is not to penalise shopkeepers but it is about “changing the way people behave and having less of a throwaway society.”

However, the British Retail Consortium thinks the Welsh Government needs to iron out anomalies in the law whilst the Federation of Small Businesses has said not all of its members have received information packs with guidance on compliance with the rules.

This change only applies to Wales, but if successful then it could encourage the other parliaments to follow suit. David Cameron has warned supermarkets to do more to reduce carrier bag use, otherwise they may be banned or a charge implemented.

Kassra Powles
0115 908 6200
kpowles@brownejacobson.com

Even so, in one sense the Government is right; more councils need to engage in the process of positive planning rather than being on the defensive against the supermarkets, which is what will happen once the National Planning Policy Framework comes into place early next year. However Mary has a point and I believe that in respect of retail planning a transition period is required to enable councils to move swiftly to put new plans and policies into place for town centres.

Posted by Steve Coult, who specialises in Planning consultancy – expert witness services and compulsory purchase management based upon extensive experience as Chartered Town Planner and Surveyor.

Steve Coult
0115 976 6152
scoult@brownejacobson.com

The publication of the final Hutton report earlier this year brought with it rumblings of discontentment amongst recipients and future recipients of the various public sector schemes to which it outlined reforms including the NHS pension scheme

The Government clarified that although it accepted all of Hutton’s 27 recommendations for reform, implementation would only occur following consultation with unions and members. The first consultations have been opened for a number of public sector pension schemes and they relate to increasing member contributions with effect from April 2012.

This consultation is only the first issued in respect of the 27 recommendations and the reaction amongst unions and members to these initial consultations signifies that there could be a lot more strikes ahead. It remains to be seen whether the Government determine that financial pressures and the “need” for reform of the public sector schemes will outweigh the upheaval to public services as a result of the planned strikes.

Posted by Victoria Leybourn, who specialises in advising companies and trustees in all aspects of pensions law and local authorities and contractors on their obligations regarding public sector pension schemes.

Victoria Leybourn
0115 976 6160
vleybourn@brownejacobson.com

According to the Local Government Association UK consumers threw away £14bn worth of food in 2010.

The guidance places greater emphasis on ‘use by’ or ‘best before’ dates and discourages the use of “sell by” and “display until” labels which are primarily used for stock control purposes.

The guidance reflects draft EU food regulations which provide only for mandatory use-by dates and omits the requirement for a best before date to be displayed. UK food labelling laws could be much simpler. This guidance is long overdue and over time it will be reflected in UK law. Any measure that reduces red tape for manufacturers and retailers will be welcomed by the industry but companies will have to continue to ensure customers are provided with any relevant details to ensure that the food they consume is safe.

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

From 1997 to 2009 this statement took the form of a pre-Budget report – almost a “mini-Budget” -under which initial details of proposed changes to the tax regime were often released ahead of the main Spring Budget.

The government is currently under pressure to make tax cuts, with some arguing that the standard rate of VAT should be reduced and others pushing for the 50% “super rate” of income tax to be abolished.

However, in contrast to the pre-Budget reports, the Coalition’s autumn statements focus more on the economy’s current performance and respond to the Office for Budget Responsibility’s forecasts and so Mr Osborne is unlikely to be giving us a taster of the 2012 Spring Budget in November.

For now, therefore, speculation over future tax changes will continue. Watch this space…

Posted by Beth Dowson, who specialises in taxation aspects of a wide range of property, corporate and commercial matters; provides taxation support to other internal departments.

Beth Dowson
0115 976 6186
bdowson@brownejacobson.com

The Government hopes to reduce the cost of claims to the public, by curbing the ability of companies to profit from injury claims. Measures which move profits to another point in the claims process or which can be circumvented by new business models will be ineffective. The challenge will be to ensure the measures are comprehensive and robust.

Ultimately, profiteering from injury claims can only be addressed by government and the Ccourts taking control of conduct and the costs awarded to parties in personal injury litigation.

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

This will be welcomed by employers, who have seen the amount of claims rise dramatically during the recent economic downturn (claims rose by 56 per cent in 2010).

However, it is not all good news.

Age discrimination claims have risen by 32 per cent. This may be as a result of employers struggling with changes to how and when employees can be retired and is something all employers need to handle with care and claims by part-time workers claiming less favourable treatment have nearly tripled. This is a stark reminder that part-time workers are entitled to the same benefits (pro rata) as full time employees.

Employers should also note that the number of claims is still significantly above 2009 levels, indicating that employees are very aware of their rights and are not afraid to involve the tribunal to enforce them.

Ben Standing
0121 237 4563
bstanding@brownejacobson.com

This consultation process is seeking views on how best to implement the governments latest proposals, including; proposals to develop the shape of the sector, provide greater freedom and flexibilities, implement FE loans to encourage shared responsibility, simplify the funding system and review and improve literacy and numeracy provision for adults.

Business Secretary Vince Cable, said “With better informed, more empowered learners and providers freed from petty bureaucracy, post-school adult learning will take its rightful place at the heart of our communities.” The consultation closes on Friday 21 October so whether this noble statement becomes reality once feedback has been collated remains to be seen.

Posted by Richard Cox, who specialises in corporate transactions and advises colleges on numerous matters including joint ventures and partnerships, college mergers and funding disputes.

Richard Cox
0115 976 6135
rcox@brownejacobson.com

The proposals include:

• removing the requirement of alcohol licences to sell chocolate liqueurs

• reducing the age limit to buy Christmas crackers from 16 to 12

• removing rules relating to the safety of pencils, prams and hood cords

• removing various pieces of antiquated legislation

• removing various specific burdens identified by businesses such as the requirement on retailers to notify TV Licensing about TV sales

The Governments efforts to reduce the regulatory burden should be applauded. However a lot of the changes announced are relatively minor and will have little tangible impact on many firms. This is not an invitation to businesses to be any less vigilant in their regulatory compliance.

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

The Coalition government has pledged to improve behaviour and academic standards and in response to the statistics, Nick Gibb has expressed concern that weak discipline remains a significant problem in schools. However, in light of the Education Bill, which will make it easier for head teachers to exclude disruptive students and give teachers increased powers to search students, we are likely to see a spike in these statistics come 2011/2012.

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

The timing is ironic, with the government unveiling today its Open Public Services White Paper. The talk is all about giving more choice to the consumer. The focus will be on where the alternative providers will come from to make such choices a reality. The government is highlighting the role of the Big Society, and playing up the opportunities for the voluntary sector.

However, for many these reforms need the private sector too, even though that will bring with it a need to make profit. In turn that needs the private sector to showcase its ability to provide efficient and reliable services. The government must be wishing ardently for an orderly transfer of Southern Cross’ homes, with minimal closures and a clear maintenance of quality standards. The future of public services needs it.

Laura Richards
0115 976 6249
lrichards@brownejacobson.com

Although Michael Gove has hinted at ways to keep schools open, reports say that one third will be closed with another third partially affected It is extremely difficult for schools to safely remain open. Not knowing which staff are in which union means that schools generally have no way of knowing who will be on strike. With strict rules preventing the use of agency staff to cover lessons, many Head Teachers and Governors are forced to a position where they have no option but to close the school. With no clear end to this dispute, schools may look to more innovative (but time consuming) ways to keep schools open in the future.

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

Danny Alexander confirmed in a speech on 16th June that the government’s proposals for members of public sector pension schemes at present comprise an increase in member contributions, an increase in members’ normal retirement ages and a career average structure for public sector schemes going forwards.

Although Alexander’s speech is consistent with some of Hutton’s 27 recommendations in his final report published earlier this year, it does not seem to be consistent with the government’s announcement in this year’s budget which confirmed that although the government endorsed Hutton’s recommendations there would be a period of consultation in order to establish how Hutton’s proposals would be implemented.

It seems, for the moment, that we are still waiting for the flesh to be put on the bones of Hutton’s recommendations.

Posted by Victoria Leybourn, who specialises in advising companies and trustees in all aspects of pensions law and local authorities and contractors on their obligations regarding public sector pension schemes.

Victoria Leybourn
0115 976 6160
vleybourn@brownejacobson.com

It is intended that the ASBs will provide vital leadership and improve the level of protection afforded to vulnerable adults in much the same way as Local Safeguarding Children’s Boards do for children. To improve consistency across the country, the government has also laid down the six guiding principles of empowerment, protection, prevention, proportionality, partnership and accountability which should inform local arrangements and govern the actions of the ASB’s.

This measure will help address concerns that the safeguarding of vulnerable adults comes a distant second place when measured against the provision, law, guidance and support aimed at children. Getting ASBs on a statutory footing is a strong step in progressing the vulnerable adult agenda.

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

The Government have also pledged its commitment to the creation of further University Technical Colleges (“UTC”), something which has been welcomed by Lord Baker who has been the champion of growth in this area for some time.

UTCs are unique in that they offer full-time technically-orientated courses for 14-19 year olds. They are designed to provide opportunities for young people to integrate academic study with practical learning, studying core GCSEs alongside technical qualifications. UTCs are therefore now clearly viewed by the Government as the vehicle through which vocational education can deliver clear progression into higher education or further learning in work.

Posted by Katie Michelon, who specialises in education law advice to schools, colleges and LEAs, including commercial advice on education sector projects such as academies, trust schools and federations.

Katie Michelon
0115 976 6189
kmichelon@brownejacobson.com

The current system means that there are massive regional variations on the funding schools receive per pupil. The Government seeks to introduce a funding system which distributes the £35 billion budget fairly among pupils and which is not dependent on where they live.

The Academy funding consultation invites views on three proposed funding options in an attempt to reform the current system which the government believes lacks transparency, is prone to error and is administratively inefficient.

As with any redistribution of wealth, there will be winners and losers and we will await with interest the more detailed proposals later this year.

Hannah Bramhall
0121 237 4563
hbramhall@brownejacobson.com

Until now, conversion was open only to schools judged by Ofsted to be Outstanding or Good with Outstanding Features (which have been able to convert in their own right) and other schools if applying as part of wider chains, supported by strong schools.

However, in response to demand from other mainstream and special schools wishing to become stand-alone academies, the Government will now consider applications from any school that can make a compelling case for converting to academy status. Criteria include exam performance over the last three years, and comparison with local and national exam performance.

It is clear that academy status is so far very popular amongst schools, which, it would appear, consider the greater freedoms promised by the Government to be a great incentive.

Posted by Chris Emm, who specialises in commercial property work primarily acting for local authorities and also deals with development and commercial freehold and leasehold matters.

Chris Emm
0115 908 4112
cemm@brownejacobson.com

Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com

Yesterday, the health secretary, Andrew Lansley gave an insight into how the government sees that businesses can help keep important marketing campaigns alive. 

Lansley explained that beer companies, confectionary firms and crisp-makers will be asked to fund the government’s Change4Life campaign; an advertising campaign that aims to persuade people to switch to a healthier lifestyle. In return, Lansley has promised that these companies will not face new legislation that was to outlaw excessively fatty, sugary and salty food. 

Whilst this is an innovative way of keeping an important government campaign alive, the public don t always realise that the majority of restrictions on food are imposed by mandatory implementation of European Regulations. 

Is the government indulging in soft sell – or is this a promise Lansley can keep?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Prior to the General Election both the Conservatives and the Liberal Democrats publicly declared their commitment to supporting the development of further integration between public sector organisations.

Whether the new Government will choose to achieve these cuts by building on the Total Place agenda developed by Labour over the last twelve months, which supports a ‘whole system approach’ to the commissioning and delivery of public services, or whether it will seek to attain short term savings without realising any widespread public sector reform remains to be seen. What is clear is that change is on the horizon and it’s likely to be big.

Posted by Emily Birkett
0121 237 3934
ebirkett@brownejacobson.com

Comparisons with the Conservative’s education policy – they want to make it easier for parents to set up new schools – will no doubt be rife. Ed Balls himself was quick to argue that while the Tory policy requires “busy working parents” to set up their own schools if they are not happy with their local state school, the Government’s proposals enable parents to “demand change and get a new and quality-guaranteed provider”.

It seems to be becoming rather trendy for political parties to drop the “P” word into their education manifestos. It will be interesting to see whether this dedication to parent power will run out of steam following the General Election.

Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com