0800 652 3371

Misreporting of Cervical Smears & Delayed Diagnosis of Cervical Cancer

All women in the UK from the ages of 25 to 65 are invited for routine cervical smear tests. For women aged 25 to 49, this invitation arrives every 3 years; for women aged 50 to 65 it arrives every 5. In 2019 - 2020, 4.63 million women were invited for a cervical smear but only 3.20 million accepted the invitation.

What is a Smear Test?

A smear test is a generally painless procedure used to check the heath of the cervix. The test involves collecting cervical cells using a swab (soft brush) which are then tested for the presence of the Human Papilloma Virus (HPV). If this is negative, no further action is required. If this is positive, a cytology screen is carried out to check for the presence of abnormal cells. If these are identified, an invitation for a colposcopy is sent for further testing to be carried out and if necessary, treatment of the abnormal cells. If identified at an early stage, this usually involves a LLETZ or similar procedure to remove the affected cells completely.

Reporting Errors

It is therefore important that as many women as possible attend for their cervical smear. It is also important to be aware that whilst the vast majority of cervical smear results are correctly reported, smear tests are studied and reported by humans and humans can make mistakes.

Sometimes negative smears are reported as positive and positive smears are reported as negative. Where a negative smear is erroneously reported as positive, this can result in women undergoing further invasive investigations that were not necessary. Where a positive smear is reported as negative, the consequences can be devastating. This is because if abnormal cells are left untreated, they can continue to develop and can turn into cervical cancer. Once a patient has cervical cancer, they are likely to need radical treatment such as a hysterectomy, chemotherapy and/or radiotherapy with life altering results. In some cases, the cancer proves fatal.

Should I Be Worried?

The vast majority of cervical smears are correctly reported as negative and fortunately, mistakes are few and far between. However, any woman presenting with any of the following symptoms following a negative cervical smear is encouraged to contact their GP for advice:-.

  • Unusual bleeding between periods, after intercourse or after menopause;
  • Unusual or unpleasant discharge;
  • Pain during intercourse;
  • Lower back pain/pelvic pain.

At Lanyon Bowdler, we have extensive experience in representing women whose cervical smears have been misreported or whose diagnosis of cervical cancer has been delayed. If you have been affected in the same way, please do not hesitate to contact us.

Using Restrictive Covenants to Protect Your Business

Post-termination restrictive covenants are clauses in employment contracts designed to prohibit employees from taking certain steps after their employment has come to an end. The aim of such provisions is to prevent or limit the damage that an existing employee could do to the employer’s business with the knowledge they have gained and the relationships they have made during their employment.

How Do Restrictive Covenants Benefit Employers?

Departing employees may attempt to use confidential information, strategic plans, customer/client details or other information about their employer’s business to set up in competition or benefit their new employer. Restrictive covenants in employment contracts are beneficial to employers as they impede this and, indeed, often prevent it altogether.

In the event that an employer believes that a former employee has breached a post-termination restrictive covenant, they can take enforcement action by way of threatening, and if necessary commencing court proceedings for, an injunction and/or damages against the employee and/or their new employer or, if applicable, their new business entity.

Types of Restrictive Covenants

The standard types of restrictive covenants found in contracts of employment are:

  • Non-solicitation covenants – to prevent the employee approaching the clients, customers or suppliers of the former employer.

  • Non-dealing covenants – to prevent the employee dealing with clients, customers or suppliers of the former employer, irrespective of which party approached the other.

  • Non-poaching covenants – to prevent the employee poaching former colleagues.

  • Non-competition covenants – to restrict the employee from competing with the former employer i.e. by working for a competitor or setting up their own competing business.

The Importance of Carefully Drafted Restrictive Covenants

For a restrictive covenant to be enforceable, an employer must show that it is no wider than is reasonably necessary to protect its legitimate business interests. Legitimate business interests include:

  • protecting trade secrets and/or confidential information;
  • protecting trade connections with customers, clients or suppliers; and
  • maintaining the stability of the workforce.

When assessing the enforceability of post-termination restrictive covenants, the court will consider if they are reasonable, having regard to the interests of the parties and the public interest. It is not unusual for us to come across restrictive covenants which are drafted in such a way that there is little to no chance that a court would enforce them. To avoid the risk of unenforceable restrictive covenants, employers should tailor the covenant to the individual employee and take legal advice accordingly.

Further to the above, the question of reasonableness of a restrictive covenant will be considered at the time the covenant was entered into, so it is important to review them from time to time. For example, if an employee is promoted or otherwise changes role, their original restrictive covenants may no longer be appropriate or enforceable, and employers should review and update them as necessary.

The Importance of Incorporation

Even well-drafted restrictive covenants will not be enforceable if they are not properly incorporated within the employment contract.

It is common for employers to:-

  • enter into a binding agreement to appoint a new employee (often verbally), but to only issue a written contract containing restrictive covenants, and other terms and conditions which were not communicated prior to the appointment being agreed, afterwards; or
  • issue a first written contract, or perhaps an amended one, containing restrictions well into the employment

without the employee receiving any “fresh consideration”, i.e. anything in return for the new terms and conditions that they would not otherwise have received.

It is therefore also important to obtain appropriate advice and guidance in relation to the incorporation of restrictions, as well as their drafting.

Strategy

Last but by no means least, employers should be mindful that, if not handled correctly, to impose restrictive covenants, or any other new terms, on an existing employee can have implications for employment relations and, worse, can result in claims for breach of contract and, if the employee has more than 2 years’ continuous service, unfair dismissal; whilst collective consultation can be required where it is proposed to force contractual changes on 20 or more employees at one establishment. Strategy considerations are therefore another important aspect for specialist advice.

For further information, contact a member of Lanyon Bowdler’s employment team.

E’ is for Easter and for Use Class E

Easter this year not only represents arguably the most important date on the Christian calendar but also society as a whole stumbling into the light as we approach (hopefully!) the end of the restrictions on movement that we have learnt to live with over the last 12 months. In the world of planning, the government has, for the last year, rolled out several pieces of legislation – some to ease the economic and social impact of lockdown and others to make the planning system more flexible in general. On 31 March 2021, right before Easter, the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021, which grants permitted development rights to convert use class E buildings into dwellinghouses, was added to the group.

Use classes were created to allow the change of uses within a group of uses without the need to engage the planning system. The Use Class Order 1987 sets out what those the use classes are. The Permitted Development Order creates further flexibility by granting permitted development rights for changes between certain use classes. These changes do not require planning permission but may be subject to a less detailed prior approval process as well as limitations and conditions.

Use class E was created in September 2020 by regulations which reconfigured and changed the use class system. The following uses have been subsumed in the new use class E:

  • Display or retail sale of goods, other than hot food (shops)

  • Sale of food and drink for consumption (mostly) on the premises (restaurant and cafés)

  • Provision of financial services, professional services (other than health or medical services), or other appropriate services in a commercial, business or service locality

  • Indoor sport, recreation or fitness (not involving motorised vehicles or firearms)

  • Provision of medical or health services (except the use of premises attached to the residence of the consultant or practitioner)

  • Crèche, day nursery or day centre (not including a residential use)

  • Uses which can be carried out in a residential area without detriment to its amenity comprising offices to carry out any operational or administrative functions, research and development of products or processes and industrial processes - use classes: planning portal

  1. switching the use of buildings and land between the above uses does not require any consent under the planning system. The permitted development rights for changes between certain use classes will remain based on the old use classes until 31 July 2021, pending new legislation from the government.

In December 2020 the government consulted on a number of proposals including a proposed new permitted development right for the change of use from use class E use to houses stating:

Where there is a surplus of retail floorspace, quality residential development will help diversify and support the high street. It will create new housing opportunities including for those who will benefit from close proximity to services, such as the elderly and those living with disabilities. It will also make effective use of existing commercial buildings, bring additional footfall from new residents, and assist in the wider regeneration of town centre and other locations.”

As stated, on 31 March 2021, the latest amended order for permitted development rights was enacted. The order applies to England and Wales according to regulation 1(2) and despite the title of the order and the scope of the consultation in December.

It grants permitted development rights (Class MA of Part 3 rights in the permitted development order) for the change of use from use class E buildings to dwellinghouses. Before development is started, an application must be made to the local authority so that they may determine if prior approval is required as to the transport impact and flooding and contamination risks of the development, the impact on the intended occupiers of noise from a commercial area or effects from an industrial area, the impact on the characteristics and sustainability of a conservation area (if relevant) and the impact of the loss of certain services. Prior approval applications for this new right can be made from 1 August 2021.

The new use class is a significant step in simplifying the planning system and is something, along with the raft of legislation enacted in 2020 and 2021, on which lawyers and planners as well members of the public, whether applicants or objectors, will continue to need education and clarification. At Lanyon Bowdler, our planning team can assist in navigating through the use classes and linked permitted development rights. Please contact us for more information.

Losing Capacity Doesn’t Have to Mean Losing Control

Around 40% of people have a Will, even fewer have a Lasting Power of Attorney (“LPA”). A lot more people consider what will happen after they pass away but very few consider what will happen should they or a loved one lose capacity, or otherwise require assistance. Unfortunately, sometimes it takes a high profile story to remind us of the potential gaps in our own planning. Recently, many of us will have seen the devastating story of Good Morning Britain host, Kate Garraway.

Kate found herself in the unfortunate position where her husband, Derek Draper, fell ill with coronavirus. On top of the stresses involved with having a family member fall seriously ill, Kate has had to deal with the complicated legal obstacles in place that prevent her from managing her husband’s care or finances.

What is an LPA?

An LPA is the successor to what many will know as an Enduring Power of Attorney (“EPA”) and replaced it in October 2007.

As with its predecessor, it is a legal document that allows you to appoint one or more individuals, who unsurprisingly become known as your attorneys. These people can then assist you in making decisions or, if necessary, they can make decisions on your behalf.

With a carefully drafted LPA, losing capacity doesn’t mean losing control, you can give your attorneys the power to deal with all your affairs or you can limit their powers. You can define the attorneys’ authority.

A key difference between an EPA and an LPA, is that there are two main types of LPA:

  • property and financial affairs; and

  • health and welfare.

Property and Financial Affairs LPA

A property and financial affairs LPA gives your attorneys the power to make decisions about your finances, this can include:

  • paying bills;

  • buying or selling property;

  • collecting benefits or a pension; and

  • managing bank accounts.

As mentioned previously, you can give your attorneys the power to deal with some of your financial affairs, or only certain things. So, for example, this could be all of the things listed above or just two or three of them.

In Kate’s situation, this LPA could have assisted her in managing her mortgage or any accounts in Derek’s sole name.

It’s important to seek advice and to have your LPA worded very carefully to ensure that you give your attorneys the powers you want them to have and it is clear to them what authority they have to deal with your affairs.

This LPA can be used as soon as it is registered, and, if you elect for it to do so, before you lose capacity, with your permission of course. This means your attorneys can assist you with your financial affairs even when you are still capable. You might not think that this would appeal to you, and it is a personal choice to make, however, many people would have found this quite useful during the coronavirus pandemic where they have needed to shield or isolate.

Health and Welfare LPA

A health and welfare LPA offers something its predecessor doesn’t, it can allow your attorneys to make decisions on things like:

  • where you live;

  • your daily routine, including what you wear and what you eat;

  • medical care; and

  • moving into a care home.

As with the property and financial affairs LPA, you can make a health and welfare LPA which deals with all aspects of your personal welfare or just certain things.

For Kate, this would have given her legal authority to make decisions and manage Derek’s care.

Again, it’s important to seek advice and to have your LPA worded very carefully. There is also some overlap with what is called a Living Will and you should consider how one may have an effect on the other. It is therefore important to consult a specialist to ensure that your wishes are enacted as you intended.

This LPA can be used as soon as it is registered, but it is not possible to use it until you have lost capacity.

Do I really need one?

There are common misconceptions with what you can do in the absence of a power of attorney, many people believe that their next of kin will always get the final say when they are unable to make decisions for themselves, or that a couple with a joint bank account or a home in joint names can act for the other.

However, whether or not you will actually ever need an LPA is a very difficult question to answer and no one can say for sure. What we do know is that the unexpected can happen and I like to think of an LPA as an insurance policy, you never take insurance out planning to use it but you’re happy you have it when you do need it.

There are many reasons we might lose capacity over our lifetime, one in three of us will develop dementia and every ninety seconds in the UK someone is admitted to hospital with an acquired brain injury.

Having an LPA has the benefit of not only allowing you to choose the person in charge of making decisions for you, it makes it easier for your loved ones. Without one, your loved ones may need to apply to the Court of Protection and a deputy may need to be appointed. This can be a long and onerous process in a time of uncertainty.

What Can Lanyon Bowdler Do to Help?

With nearly twenty-two thousand applications for LPAs in 2019/20 being rejected by the Office of the Public Guardian, it can be important to consider legal advice when drafting the necessary documentation.

Our private client team has decades of combined experience in helping clients deal with their affairs.

We can assist in preparing your LPA or any side letters you may wish to accompany your documentation.

Contact a member of our team today to see how we can help you.

Do Workers have the Right to Carry-Over Payment where Annual Leave has been Taken but they have not been Paid for it?

In Smith v Pimlico Plumber Ltd, the Employment Appeal Tribunal has confirmed that any worker who has been permitted to take annual leave, but has not been paid for it, cannot carry-over a right to payment for that annual leave.

Mr Smith worked for Pimlico Plumbers Limited from August 2005 to May 2011. During this time, Mr Smith actually took periods of unpaid annual leave, Pimlico regarding Mr Smith as a self-employed independent contractor with no entitlement to paid annual leave. Following a dispute with Pimlico, Mr Smith terminated his contract with Pimlico claiming they had acted so as to fundamentally breach his contract with them.

On 1 August 2011, Mr Smith commenced a claim for holiday pay, amongst other things. Pimlico argued that Mr Smith was not an employee or a worker and therefore had no entitlement to paid annual leave, but they were unsuccessful in this argument when tested before the Supreme Court.

However, notwithstanding the ruling that Mr Smith was a worker and entitled to paid annual leave, the Employment Tribunal dismissed Mr Smith’s holiday pay claim on the basis that Mr Smith could not correctly claim for carried over accumulated holiday pay as he had, as a matter of fact, been permitted to take holiday but had not received payment for it. The Tribunal made the distinction between Mr Smith’s case and the facts in King v Sash Window Workshop, where the claimant had accrued leave but had not taken it during his employment.

Mr Smith appealed, but the Employment Appeal Tribunal upheld the decision and confirmed that the Employment Tribunal was not mistaken in its interpretation of King. It was noted that Mr Smith had not been prevented from exercising his right to take leave and was not deterred from taking annual leave because he knew he was not going to be paid. Unlike the claimant in King, Mr Smith took leave and benefited from periods of rest.

This is a very significant case for employers seeking to rectify historic paid annual leave deficiencies.

When are workers entitled to carry-over payment for paid annual leave?

King v Sash Window Workshop established that where an employer has told the worker that leave will be unpaid, and this has dissuaded the worker from taking leave, the right to any untaken Working Time Directive leave (4 weeks) will carry over, potentially until termination.

Workers must be given an effective opportunity to take their statutory holiday and employers must be able to show they have enabled workers to take their holiday.

For further information, contact a member of Lanyon Bowdler’s employment team.

Testing Times for Separated Families

The pandemic has raised significant issues for separated parents who have had to struggle with making decisions for their children, often in the face of objection or disagreement from their ex-partner.

Under the Children Act 1989 the holders of parental responsibility cannot make unilateral decisions for their children. That is to say, they should not make decisions without the other parents’ consent.

The pandemic has meant parents have had to consider;

  • Can a child move between two households during lockdown?
  • If the child is home schooling, which parent should be responsible for that and can normal contact arrangements continue?
  • If the parents live a significant distance from one another, should the parent travel to the child’s’ local area for contact to avoid the child having to travel unnecessarily, if so what happens if the hotels and local amenities are closed?
  • If vaccination is extended for children, can the parents agree the child should receive the vaccination?
  • Now the most pressing decision is what should happen during the school holidays, can the children travel abroad?

Most families share the school holidays and often the only factor they have to consider is that the time falls within their allocated time with their child, so as not to fetter the other parents time. Or whether sufficient information has been shared with the other parent about hotel details, travel arrangements etc.

Now the government task force is due to report on 17 May and only then will parents know the exact rules for overseas travel regarding tests and jabs.

If all goes to plan parents will be able to go abroad from 17 May but that will not be the end of the matter.

COVID-19 tests with a negative result taken hours before travel will almost certainly be required for all those returning to the UK.

What happens, therefore, if you are returning at the end of a half term week or the end of the summer holidays, when the child has to go back to school? Should you run the risk of being stuck in a foreign country, unable to return if you or your child has a positive test result? A decision that will impact the child’s education.

What happens if one parent plans to go on their holiday the day after the other parent returns from their summer holiday? The second parent will be unable to go if the child is stuck and cannot return to the UK, or is having to quarantine.

Self-employed or Workers? Supreme Court Unanimous Decision in Favour of Uber Drivers

From 17 March 2021, Uber has agreed to give its UK drivers a guaranteed minimum wage, holiday pay and a pension. This decision is a direct result of the Supreme Court’s decision that Uber drivers are considered “workers” and not “self-employed”, after they dismissed Uber’s appeal.

The judgment had been eagerly awaited since the initial Supreme Court hearing in 2020. However, the outcome was no great surprise, considering that it was the fourth time the courts had reached the same conclusion. The significance of this decision is that there is no further right of appeal and therefore Uber must now finally contend with a definitive ruling that their drivers are workers under UK employment legislation.

From 17 March 2021, Uber has made the following changes:

  • They will pay at least the National Living Wage for over 25s, irrespective of a driver's age.
  • All drivers will be paid holiday time based on 12.07% of their earnings, paid out on a fortnightly basis.
  • Drivers will automatically be enrolled into a pension plan with contributions from Uber alongside driver contributions.
  • Uber will continue to offer free insurance in case of sickness or injury as well as parental payments, which have been in place for all drivers since 2018.
  • All drivers will retain the freedom to choose if, when and where they drive.

The judgement comes after a long-running battle in the UK courts, led by two former Uber drivers, who won an employment tribunal claim in October 2016. Uber unsuccessfully appealed the decision four times, taking it all the way up to UK’s highest court.

In reaching their decision on establishing ‘worker status’, the Supreme Court emphasised five factors, previously highlighted by the Employment Tribunal, which they found were particularly indicative of a worker relationship:

  • Uber dictated how much drivers were paid and whether to refund passengers.
  • Drivers had no ability to negotiate the terms in relation to their contract with Uber.
  • Once a driver logged into the Uber app, they were constrained in rejecting trips as the rate of acceptance and cancellation was monitored.
  • Uber monitors a driver’s service through a rating system, and had the capacity to terminate a driver if the service did not improve after repeated warnings.
  • The relationship between the driver and the passenger was restricted to a minimum, preventing the driver from establishing a relationship with a passenger capable of extending beyond an individual ride.

Further implications for Uber

We have not seen the end of this particular case, since the worker status issue was only preliminary. It will now return to the Employment Tribunal to determine the compensation due to the drivers in respect of their claims for holiday pay and unlawful deductions from wages.

Further, there has been no mention by Uber of volunteering compensation to its drivers generally for past entitlements, and the minimum payments that Uber has said it will apply going forward will not be paid when drivers are logged on but not carrying out trips. The Independent Workers Union of Great Britain is calling on HMRC to enforce the Supreme Court ruling and ensure that drivers receive a minimum rate of pay from the moment they log onto their app, not only when they are carrying out trips.

Numerous linked cases in the UK have been stayed pending the outcome in the Supreme Court and will now be recommenced, and the floodgates may now be open for many more.

If you are unsure of your employment status or work with contractors, it is best that you receive legal advice to ensure the validity of your agreement. Please contact our team.

Police, Crime, Sentencing and Courts Bill

Following the controversial scenes in Bristol over the weekend, the following are some of the ‘highlights’ of the Police, Crime, Sentencing and Courts Bill that the government is hoping to enshrine in law in due course.

Police Powers

The bill proposes amendments to the Public Order Act 1986, which civil liberty groups fear could significantly increase police powers to restrict people’s rights to assemble or congregate in public places, for example. It will also increase police powers to stop and search those suspected of carrying a blade, a controversial step given the current racial disparity in how searches are presently carried out.

Criminal Records

The government is proposing to reduce the time that previous convictions have to be disclosed to future employers for sentences under four years’ imprisonment and community orders. There are also plans to introduce a rehabilitation period for certain jobs where the sentence exceeds four years.

Out of Court Disposals

As there is significant evidence that diverting people from the criminal justice system reduces the likelihood of future reoffending, greater powers are proposed, such as diversion to address, for example, addiction or mental health issues.

Problem Solving Courts

There will be greater emphasis on courts to offer more intensive and structured support with rewards and incentives for progress but sanctions for disengagement. The aim is that such orders will be more responsive to the individual’s need and reduce reoffending in the process.

Increased Sentencing Powers

The maximum sentence for assault on an emergency worker will double from 12 months to two years.

  • Whole life orders (life imprisonment) will be imposed for child killers.
  • Causing death by dangerous driving will be increased to a maximum of life imprisonment.
  • Offenders sentenced for serious violent or sexual offences will no longer be automatically released at the halfway point of their sentence.

It will be interesting to see how much opposition the government faces in trying to enact the bill. If all of the proposals are passed, it will inevitably lead to more prison sentences being imposed for longer periods at a time when the prison estate is already under immense pressure due to numbers and underfunding. Please contact our crime team for more information.

Sleep-in Workers and the Minimum Wage

In Royal Mencap Society v Tomlinson-Blake and another case, the Supreme Court has held that care workers who were required to sleep at, or near, their workplace, and be available to be called on during the night, were not entitled to the national minimum wage (“NMW”) for the entirety of their sleep-in shifts. During this time, the workers were not working but merely ‘available for work’, meaning that they were entitled to the NMW only for time during which they were awake for the purpose of working.

This case puts to an end a long-held belief that sleep-in shifts could qualify for the NMW following British Nursing Association v Inland Revenue, where the Court of Appeal upheld an employment tribunal’s finding that employees were working throughout their night shifts even during the periods when they were expected to be sleeping.

This case will come as a relief to employers in the care sector, but will be a disappointment to unions who have been campaigning for improved pay and conditions in this already low-paid sector.

Shielding to be Paused

Shielding is to be paused in England and Wales with effect from 1 April 2021.

The clinically extremely vulnerable were last advised to shield in England from 5 January 2021, following the imposition of the current national lockdown. The Department of Health and Social Care has now published a notification letter for that group to the effect that from 1 April, they will no longer be advised to shield and will not be eligible for statutory sick pay on the basis of being advised to shield. It states: “Everyone is currently advised to work from home where possible. If you cannot work from home, you should go to work.” The letter also notes that employers are required to take steps to reduce the risk of exposure to Covid-19 in the workplace.

At the time of writing, the shielding guidance in England states that it was updated on 18 March 2021 but does not yet reflect the latest position.

The Welsh Government has also confirmed that shielding measures for the clinically extremely vulnerable will be paused in Wales from the same date. That group was last advised to shield from 22 December 2020.

The shielding guidance in Wales was also last updated on 18 March, and refers to this anticipated change. It confirms that, from 1 April: the clinically extremely vulnerable are to go to work if they cannot work from home, as long as the business is Covid-secure; that the guidance will be updated further on 31 March; and that a new letter will be sent to the clinically extremely vulnerable in Wales in the coming weeks.

For advice on any employment-related issues arising in connection with Covid-19, please contact me on 01952 211010 or email john.merry@lblaw.co.uk.

Commencement in Any Language

When it comes to development which has been authorised by planning permission, commencement means different things at different stages. If a planning permission is in danger of expiring, commencement of the development in time is crucial to keep the permission alive. If a developer is wondering whether a section 106 obligation may have been triggered, the question becomes whether commencement has occurred or whether any works are merely preliminary works which have been excluded from the definition of commencement in the section 106 agreement. Finally, for the purposes of the Community Infrastructure Levy (‘CIL’), payment, which may in full or in instalments, becomes due from the date that a chargeable development is commenced.

Commencement is known by different names, depending on which procedure is under consideration. In relation to preserving a planning permission, the relevant legislation requires that development “must be begun” within a time period specified in the planning permission or a default period of three years for England and five years for Wales. This consequence of not beginning development within that time period is that the permission will expire, in the sense that any development carried out after the time period will not be authorised by the permission.

Development begins when a material operation which is comprised within the authorised development starts. A material operation is defined in section 56(4) of the Town and Country Planning Act 1990 and essentially means any work of construction or demolition of a building, certain works for the foundation of a building, any operation for laying out or constructing a road and a change of use (subject to certain exceptions).

What are Pre-commencement Conditions?

In order to come within the planning permission, the development must be begun in accordance with conditions attached to it, including conditions which prohibit the start of development until certain procedures are carried out, known as pre-commencement conditions. This is an area of planning that has been the subject of much case law debate which is outside the scope of this article. However, one point which is relevant to this article is that, as long as pre-commencement conditions are complied with and what the developer does is within the development permitted by the permission, minor works can be sufficient to start and therefore preserve planning permissions.

Section 106 agreements or undertakings, if required, are almost always completed before the grant of planning permission. They contain obligations on the developer, which could be restrictions, obligations to carry out works or to pay contributions, which the planning authority requires to make the development acceptable.

Section 106 agreements refer to the commencement or implementation of development in two ways. Firstly, section 106 agreements will often not become effective or ‘in force’ until the planning permission is granted and development commences. This is an acknowledgement that a developer does not have to implement a particular permission, just because it is granted, and can choose to develop their land under alternative permissions or schemes.

Section 106 agreements also often carve out certain works to avoid triggering obligations which are due on commencement of development while the developer is carrying out preliminary site works. Therefore commencement of development is often a slightly different concept, depending on whether you are talking about preserving a planning permission or triggering an obligation in a section 106 agreement. It means different things and is called different things, much like ‘Love’ in the 1980s song ‘Love in Any Language’ by Christian singer Sandy Patti, from which I made up the title of this article to make it seem even more interesting than it already is.

What Else Should Developers Consider?

In addition to the above, developers building in authorities which have adopted a CIL charging schedule have to consider the definition and consequences of the commencement of a development within the CIL Regulations. They are under an obligation to notify the charging authority (which is the same as the LPA) of their intentions to commence development at least a day before commencement. The CIL charges become due on commencement of development. A lack of awareness of this process can attract surcharges and have the consequence of moving forward payments which were supposed to be made in instalments.

In the appeal decision of Anon v Cotswold District Council, decided on 3 March 2021, the inspector considered whether the widening of an access fell within the definition of commencement as set out in the CIL Regulations. The regulations state that, subject to certain exceptions, development is commenced on the earliest date that a material operation is carrying out on the development site. ‘Material operation’ has the same meaning in the regulations as in section 56(4). The exceptions relate to situations where a permission has previously been granted for the same development, for instance section 73 permissions which relate to the variation of conditions on a previously granted permission.

The development was for the conversion of a gospel hall. The authority concluded, after a routine visit, that the presence of some metal fencing, a pile of rubble, a portable toilet, a small digger and a skip was sufficient evidence that development had commenced without the developer serving a commencement notice. A demand notice was served on the developer for the CIL charges and a surcharge.

The developers appealed and countered that the photographs of the items above, which were produced by the authority during the appeal, did not demonstrate commencement of the development. They stated that some of the items were there so that an existing vehicular access could be widened to enable equipment to be delivered to the site to allow development to commence on a certain date. The inspector upheld the appeal because the widening of the vehicular access did not form part of the development authorised by the permission.

It could be that the authority did not give the developer a chance to put forward this reason for the skips etc, did not properly consider what the developer had to say or did not believe the developer. However, it should be noted that that is the kind of evidence that is often presented to LPAs to demonstrate that a development under a planning permission has been commenced within the time relevant time period. The key issue is the wording in section 56(4), which was highlighted in the inspector’s decision, that the material operation (however minor) had to be ‘comprised within the development’ authorised by the planning permission.

Whether the question at hand is keeping a permission alive, CIL liability or the triggering of a section 106 obligation, commencement is an issue that sometimes requires the help of experts. The planning team at Lanyon Bowdler is able to assist with this or any related issues. Please contact us for further information.

False Claims Made by Local Maternity Units Mean Millions to Be Repaid in NHS Funds

A number of trusts located throughout the UK have been forced to repay money granted to them following incorrect data being provided in self-assessments of their own maternity units.

Lanyon Bowdler acts on behalf of a significant number of families affected by failings in maternity services at the Shrewsbury and Telford Hospital NHS Trust. We have seen concerning events that took place in the 1980s repeat themselves in the 2020s, showing that lessons do not seem to have been learnt. The Shrewsbury and Telford Hospital NHS Trust was one of the trusts highlighted as being forced to repay money, with the amount to be repaid by the trust totalling £953,000.

An article by The Independent states that a further six hospital trusts across the UK were also forced to repay money given, with the largest sum paid back by University Hospitals Birmingham. Following an internal review this trust repaid a total of £3 million.

NHS trusts are supposed to meet 10 safety actions to include ensuring systems are in place to review deaths, monitor women and plan staffing levels. The trusts should also report incidents to the Healthcare Safety Investigation Branch, which investigates maternity incidents within the NHS.

News of a number of trusts falsifying figures will not assist in restoring public faith in the NHS maternity services, particularly after an independent inquiry, leaked in 2019, found that more than 40 babies died due to poor care at the Shrewsbury and Telford Hospital NHS Trust and that an ongoing independent review by Donna Ockenden is now looking into 1,862 cases of possible concern.

Families affected question where the grants of the original sums of money ended up being spent, particularly with reports indicating that some trusts exhibited unsafe cultures and parents had expressed concerns over staffing levels. Criminal prosecution is being contemplated against two trusts given that deaths had occurred in their respective maternity units.

It is worth noting that out of the 115 NHS trusts that had self-declared themselves to meet the necessary safety actions, only 14 trusts failed on at least one measure. The response of NHS Resolution noted that they recognised poor governance which required further action. The chief executive of each trust is expected to sign off all declarations of individual maternity units meeting standards, so questions will be asked whether the misreporting has originated from the highest level.

This news coming to light will clearly cause worry for pregnant women in the local communities affected. Independent inquiries seem to be needed more than ever, particularly where babies and their mothers are suffering avoidable injury whilst attending these hospitals. 60% of all clinical negligence claims against the NHS between 2018 and 2019 involved maternity services.

Lanyon Bowdler has vast experience in maternal and birth injury claims and has a dedicated team dealing with enquiries and potential claims arising from the Shrewsbury and Telford Hospital NHS Trust maternity scandal. If you, or someone you know, has experienced possible negligent prenatal or postnatal care, or something has gone wrong during the labour period, please contact our team who will be able to assist with your enquiry.

Latest News

08 May 2016

A Mother Talks About the Challenges Faced Due to Cerebral Palsy Following a Birth Injury

Her daughter from Shropshire was diagnosed with Cerebral Palsy following a birth injury, Lanyon Bowdler are working w...

Read More