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Horatio's Garden

Spending time in a beautiful garden is a way many of us love to relax - but how often do we take this for granted? For patients with a spinal cord injury, being able to get out into the garden might seem a far off dream. However, Horatio’s Garden is an inspirational charity which has been set up to create and care for beautiful accessible gardens in Spinal Injury Centres around the country.

Last November, I was thrilled to be able to attend the ground breaking ceremony marking the beginning of work on a garden at The Midlands Centre for Spinal Injuries at the Robert Jones and Agnes Hunt Orthopaedic Hospital in Oswestry.

Patients who have sustained spinal injuries usually need to spend many months in hospital so that they can receive necessary treatment and therapy, and start the rehabilitation process. This can involve prolonged periods of time on bed rest, which must be hugely frustrating and at times claustrophobic. Having the opportunity to go outside again and enjoy the fresh air and wonder of nature is a life affirming experience. Providing accessible gardens gives a fantastic opportunity for patients to rest and relax, to socialise with family, friends and other patients, and to take part in general rehabilitation activities.

I heard about the inspiration behind Horatio’s Garden charity earlier last year when David Chapple, a Spinal Surgeon at Salisbury Hospital, spoke about Horatio’s Garden at our Spinal Injury Conference at The Midlands Centre for Spinal Injures. Horatio’s Garden is named after David’s son, Horatio, who was a volunteer at the Spinal Treatment Centre in Salisbury in his school holidays and who, along with his dad, came up with the idea for a garden at that centre. Tragically Horatio was killed at the age of 17, but based on patient research, which Horatio had carried out, the plans for the first Horatio’s Garden were drawn up. Horatio had even got himself taken around the site in a bed and wheelchair so that he could get the patient’s perspective on what was needed.

Beautiful accessible gardens have now ben created in the Spinal Injuries Centres in Salisbury, Glasgow and Stoke Mandeville, with work now underway for gardens in Oswestry and London. The Oswestry garden is being designed by the award winning Garden Designer, Bunny Guinness (of Gardeners’ Question Time fame). I’m looking forward to seeing the garden develop and am sure it will make a massive difference to the lives and rehabilitation of patients, both physically and mentally.

For more information about how to support this fantastic charity - as a friend, by making a donation or fundraising, by volunteering in one of the gardens, or even just doing some shopping in their online shop – then please check out their website at www.horatiosgarden.org.uk.

Management is More than Just a Job Title

An issue I frequently come across is where an employee, due to creditable performance in their current role, is promoted into a management position without full consideration as to whether this is the best decision for the business or the individual. Has the business considered, for example, alternative ways to reward good service or what, if any, support and guidance will be provided to the employee to enable them to succeed in their new role?

If an employee is successful at their current role, it does not necessarily follow that they will be successful in a management role. If you are seeking to reward good performance and retain your best performing staff, promotion is only one option and it may not always be the most suitable. Rather than encouraging loyalty and retention of your most valued staff members, promoting an employee into management without adequate training or assessment of their suitability for such a position could have the opposite effect.

There are many other ways to reward loyal and good service, and these need not necessarily cost the business additional money.

We can provide bespoke training

If you are minded to promote any particular employee into a management role, I advise that consideration is given to providing them with management training to equip them with the tools required to succeed and to deliver the best for your business. Similarly, you may have managers in post now to whom you do not feel able to delegate certain tasks. If that is the case, you are not fully utilising them and you should consider providing them with suitable training in order to correct this, and free up more senior managers and directors to focus their time and attention on other areas of the business.

We can provide bespoke training, either at your place of work or at one of our offices, for managers, and would-be managers, on a wide range of topics to help them to reach their full potential, such as in relation to identifying and addressing performance or attendance issues, promoting good mental health, handling grievances and whistleblowing, dealing with indiscipline, and anti-bullying and harassment strategies. We can also provide advice and guidance on alternative methods of rewarding good performance and retaining key staff.

Retainer services

In addition, we offer retainer services which, for a fixed fee, would give your managers access to employment law and HR advice and guidance from qualified local solicitors in relation to day to day, and not so day to day, issues that they encounter. This can include the drafting of relevant documents and letters as and when needed, giving you the confidence to allow managers to deal with matters, safe in the knowledge that they have the benefit of specialist advice at their fingertips. And added to this, because employees often chance their arm with claims even when managers have done everything by the book (and because even the best trained managers sometimes make mistakes, or otherwise employment tribunals can make unpredictable decisions) is the availability of the safety net of insurance against employment tribunal claims, settlements and awards.

Please call us to discuss your options in more detail.

New Year's Resolutions & My Goals

As we recover from the overindulgence of Christmas contemplating our New Year's resolutions I thought I would share my goals for the year ahead.

None of what I want to achieve in 2019 seems particularly out of the ordinary; be healthier; give more to charity, put my affairs in order. The same as many others I am sure.

But today is officially known as ‘Quitters day’ according to Strava the social media platform who using data collected in 2017 found that the second Friday in January was the day when motivation started to falter. It went on to say that setting an achievable goal and a target date was the key to keeping people motivated. Of all those who entered a race in 2017 92% of them were still active 10 months later.

Some of my fitness goals over the years have perhaps been a little too ambitious for example in the same year I got married, I also crashed out of the London Marathon with a damaged knee. What suddenly struck me about that date was the realisation I hadn’t reviewed my Will since then and I now have two children so that has to be the first thing on the list to sort.

Whilst 2018 saw me improve my fitness by learning to swim and loose over a 10kg in weight. This year I have joined a cycling club with a view to combining all three disciplines and complete my first Triathlon for charity.

Whilst I can't promise to make you more healthy in 2019, If you like the sounds of getting your affairs in order and perhaps giving more to charity, then perhaps setting yourself the simple goal of booking an appointment to discuss making a Lasting Power of Attorney and reviewing your Will is an achievable goal and something I can help with.

Ex-Police Officer Avoids Losing Driving Licence

I read with interest the case of former police officer Adrian Pearce who was sentenced at Basingstoke Magistrates‘ Court on Thursday 3 January by a District Judge.

The case has received widespread coverage in the national press and on social media for the court not disqualifying Pearce for committing a drink driving offence. On closer inspection, whilst an extremely foolish thing to do, there is no evidence of Pearce actually driving, only that he intended to drive having returned on the train from a Christmas party.

Had he not intended to drive, then he would have had a defence in law to the allegation he faced. As there is no evidence of Pearce driving or attempting to drive then a mandatory disqualification does not necessarily follow.

Instead, he pleaded guilty to and was sentenced for being drunk in charge of a motor vehicle.

The Sentencing Guidelines that all courts follow make it clear that for a breath reading of 61, as in this instance, a disqualification is only discretionary. The District Judge, having heard the personal mitigation and the impact a driving ban would have on Pearce’s future employability, quite properly exercised his discretion.

It is not a case of Pearce being treated more leniently because he was a police officer, as I have seen suggested. Each sentencing court should deal with a particular case on its own merits as has happened in this instance.

If the courts are not afforded discretion, then we are heading down a slippery slope……what next?....a mobile phone app for the public to decide on sentence?!

A&E at Christmas

It is well known that Christmas is one of the busiest times of year for Accident and Emergency Departments (A&E) and there are no signs of this changing any time soon. Figures published by NHS England show that 2,003,964 people attended A&E in December 2017 in England.This was an increase compared to December 2016 when there were 1,944,568 attendances and December 2015 when there were 1,867,652 attendances.

It is also well known that NHS staff are under enormous pressure to meet targets and to see all attendees within a four hour window.

This combination can be a recipe for disaster and it is therefore not surprising that there is an increased risk of medical errors happening during this time.

People can be very understanding during the festive season and for this reason many people do not take action in response to these errors, often as they do not want to get anyone into trouble, particularly as the doctor or nurse concerned has given up their Christmas to care for others. However, clinical negligence cases are not about getting anyone into trouble, and whilst their main aim is to obtain compensation for the injured person, there is a wider goal and that is to encourage the NHS to learn from their mistakes and to prevent the same thing from happening again to someone else. Often, the mistakes happen because there just weren’t enough staff (for whatever reason) to cope with the number of patients. Consultations are therefore rushed, staff are distracted and they take their eye off the ball.

Focus of the NHS

However, rather than taking adequate steps to ensure there are sufficient staffing levels to meet the needs of an increased number of patients, the NHS remains focused on encouraging people not to attend A&E except in an emergency.

What is an emergency?

Unfortunately, it is not always clear from this campaign what an “emergency” is and therefore a lot of genuinely sick people risk their lives by not seeking medical attention when they genuinely need it for fear of being branded a nuisance or wasting valuable time.

The dictionary definition of “medical emergency” is ‘a serious and unexpected situation involving illness or injury and requiring immediate action’. According to the NHS, this can include loss of consciousness, an acute confused state, fits that aren’t stopping, chest pain/breathing difficulties, severe bleeding that cannot be stopped, severe allergic reaction, severe burns or scalds.

Seek help!

Anyone who has any of these symptoms should not hesitate to go to their closest A&E as these people are not who the campaign targets.

The campaign targets people who do not fall into the definition of emergency.

In 2014, Cannock Chase Clinical Commissioning Group published ‘the 12 A&E Visits of Christmas’ in a bid to highlight the kinds of things staff are being asked to contend with including broken fingernails and bad hair extensions (you can’t make it up, the full list can be viewed here https://www.cannockchaseccg.nhs.uk/news-events/96-nhs-releases-12-a-e-visits-of-christmas-in-bid-to-deter-unnecessary-visits). As always though, if you are in doubt, dial 111 for advice.

The NHS campaign has been ongoing for a number of years now but the number of people attending hospital isn’t going down and therefore the risk of mistakes remains high. It therefore remains imperative that there are sufficient staffing levels to deal with this.

Therefore, if you’re unfortunate enough to need to attend A&E this Christmas and even more unfortunate enough that something goes wrong, do not hesitate to contact our clinical negligence team for advice. Our hope is that we can work together to encourage positive change from within the NHS to reduce the risk of future mistakes alongside the NHS’ own campaign.

Drug Driving

Two stories have caught the eye in the national press over the last few days involving drug driving.

The first story is the criminal investigation into alleged manipulation of data in respect of toxicology tests carried out at Randox laboratory in Manchester.

At present it is believed that the majority of affected samples relate to drug driving offences but it may extend to more serious offences too.

Having recently successfully represented a client in having their conviction overturned, it will be interesting to see how many more people have had their lives turned upside down as a result of what has allegedly happened.

People convicted based on these tests will have received a minimum mandatory driving disqualification of 12 months. This in turn may have cost them their employment and impacted upon other areas in their life.

Those wrongly convicted will no doubt be pursuing civil claims for damages, and it will be interesting to see how this is quantified in due course

In the second story, a study between June to July shows that an average of 37 motorists were testing positive for banned substances on a daily basis.

That number is likely to increase as police forces increase drink and drug drive testing at this time of year.

The rise is being put down to the introduction of new drug testing saliva roadside testing kits, which allow police to identify illicit substances within minutes.

For any advice on motoring law or if you feel you may have been wrongly convicted, please contact us on 0800 652 3371.

Be Safe This Christmas

Christmas is fast approaching which means lots of merriment, celebration and partying in the run up to the big day. It is also the time of year that the police begin their annual blitz on drink and drug driving.

Most people know not to risk driving the same evening they go out drinking (or taking drugs), but people often fail to realise they can still be significantly over the legal drink drive limit the following day, or over the drug drive limit for days, possibly weeks after consuming recreational drugs.

On average, it takes one hour for a healthy liver to process one unit of alcohol; meaning just three glasses of wine could take nearly seven hours to leave the system. However, this does depend on a number of factors, such as weight, gender, age, and even current stress levels, so it is not always easy to tell whether the alcohol will be out of your blood stream.

If you smoke cannabis, it can stay in the system for a number of days, even longer for regular users. Taking cocaine can produce a metabolite called BZE which will be higher the more regularly it is used.

The consequences of a conviction nearly always lead to a minimum 12 months ban from driving, which in turn may cost you your job and impact upon future employability.

If you find yourself needing any advice, please contact myself or one of the team.

Proposed Probate Fee Increases

On 5 November 2018 the government announced a proposal to increase probate fees. While it may not sound like something which would affect you, applying for probate is a common occurrence following the death of a loved one.

But what is a grant of probate, and what are the new proposals?

Grant of Probate

Following the death of a loved one, family and friends often assume that they will be able to handle the estate (property, money and belongings) of those who have passed. However, this is not always the case.

If a loved one died leaving a Will then only those who are named as executors are allowed to handle the deceased’s estate. And while many financial institutions such as banks and building societies may be willing to assist executors on an informal basis, often if the value of the assets is too great the institution will require a Grant of Probate.

It is often viewed that applying for probate is a bad thing, signalling that something has gone wrong. This is not the case. A Grant of Probate is merely a legal document which helps identify that the executors named have the authority to deal with the estate, and are the executors named in the Will of the deceased.

You may ask why a copy of the Will showing the executors named is not enough to allow the executors to act. The reason is that the deceased may have made a number of Wills appointing various executors. By applying for the Grant of Probate the executors are proving the Will is the deceased’s last Will, and the executors are the ones who have the authority to act.

It is often viewed that a Grant of Probate is the key to unlocking the estate.

Proposal

At the date of this article, the fee’s for applying for a Grant of Probate are fixed at either £215 if applying as an individual or £155 if applying through a solicitor.

Once the proposals are approved, the fee for applying for probate will vary depending on the value of the whole of the deceased’s estate.

The proposed fees are shown as follows:

Value of Estate (before inheritance tax)

Proposed Fee

Up to £50,000 or exempt from requiring a grant of probate

£0

£50,000 - £300,000

£250

£300,000 - £500,000

£750

£500,000 - £1m

£2,500

£1m - £1.6m

£4,000

£1.6m - £2m

£5,000

Above £2m

£6,000

What the Government says

In a written statement to Parliament, the Parliamentary Under-Secretary for the Ministry of Justice Lucy Frazer MP said:

"This new banded fee model represents a fair and more progressive way to pay for probate services compared to the current flat fee and reflects our commitment to protecting access to justice by ensuring we have a properly funded and resourced courts system.

"We are also confident these fees will never be unaffordable. The cost of the fee is recoverable from the estate and executors have several options to fund it. Moreover, the Lord Chancellor retains a power to remit a fee if he considers there are exceptional circumstances."

Practical effect of the proposal

While those estates which are not valued at more than £50,000 will be exempt from paying an application fee, the proposed fees are significantly higher than those which are currently being charged.

We also need to consider who will be paying. The fees will be deducted the from the deceased’s estate meaning the executors will not personally be paying for the application.

However, the less money which is in the estate the less those who are set to benefit will receive.

When will the proposal take effect?

We have been told that if it goes through Parliament as approved, it will be effective from April 2019, and the new fees will effect all probate applications made after that date.

In order to benefit from the current flat fee the application must be made before the proposal is brought into effect.

How Lanyon Bowdler can help

At Lanyon Bowdler we understand that dealing with the passing of a loved one can be challenging and time consuming. Our dedicated private client department is always willing to assist in obtaining probate for executors.

Should you have any questions or queries, a member of our team will be able to assist.

Rise In Bowel Cancer Among Young People

Bowel cancer, also known as colorectal cancer, is the fourth most common cancer in the UK with almost 42,000 people being diagnosed every year. In the vast majority of cases the disease is diagnosed in people over the age of 50 but it is important to remember that bowel cancer can affect those of any age and indeed recent research has shown an increase in the disease in younger adults.

New research

Incidence rates in adults aged 20 to 39 across Europe over the last 25 years were analysed using data from 20 European national cancer registries, including the UK. The research revealed that between 2008 and 2016 incidence rates increased by six per cent every year.

Despite this increase, this type of cancer remains rare in younger people. There are now around 2,100 people in the UK under the age of 50 diagnosed with bowel cancer each year and this figure represents only 5% of everyone diagnosed in the UK each year.

However, bowel cancer is the UK’s second biggest cancer killer after lung cancer, despite the fact that it is treatable and curable, particularly if diagnosed at an early stage. Currently in the UK, NHS bowel cancer screening is only offered to people aged 55 and over as this age group is the most likely to be affected, but with more and more young adults being diagnosed, it is important that you are able to recognise the symptoms and consult your doctor if you have any concerns.

What are the symptoms?

The symptoms of bowel cancer which affect more than 90% of those diagnosed include:

  • Bleeding from your bottom and/or blood in your stool
  • A persistent and unexplained change in bowel habit
  • Unexplained weight loss
  • Extreme tiredness for no obvious reason
  • A pain or lump in your tummy

If you have any of the above symptoms, don’t be embarrassed and certainly don’t ignore them. The chances are that you do not have bowel cancer as there are a number of other health conditions that can cause similar symptoms. However, it is always better to be safe and consult your GP if you have any concerns.

Getting a diagnosis

The impact bowel cancer has on younger sufferers is often disproportionately worse than their older population counterparts, as studies have shown that young-onset colorectal cancer is more likely to be diagnosed at an advanced stage and is often more aggressive, making it more difficult to treat.

Possible reasons for this are that many younger people are not aware that they could be at risk of bowel cancer and even where they are aware of the symptoms, they do not recognise them as serious when they experience them. This can result in delays in going to see the GP and research has found that even when they do go to the GP, there are considerable variations in how younger people and the possibility of bowel cancer are treated.

Findings from Bowel Cancer UK’s “Never Too Young” survey found that “younger people take longer to be diagnosed and often face delays, in some cases having to see their GP more than five times before being referred for crucial tests. On top of this they also have poorer outcomes – 60% are diagnosed at the later stages of the disease and 34% are diagnosed in emergency care when the chance of survival is lower.”

Here at Lanyon Bowdler we understand the difficulty our clients have in coming to terms with a cancer diagnosis, particularly when there are questions about the standard of care they have received. If you consider that your care has been affected by a delay in diagnosis, it’s important to consider all the options available to you. Our team are happy to discuss the matter with you and guide you through the process sensitively.

Discretion Called For Over Driving Bans

I note with interest an article in today’s local paper regarding people being allowed to continue driving after they have amassed 12 or more penalty points on their driving licence.

https://www.shropshirestar.com/news/crime/2018/10/29/revealed-dangerous-motorists-still-on-roads-dodging-driving-bans/

Whilst not in any way seeking to downplay such matters, in my view reaching 12 points within a three year period does not necessarily render a driver ‘dangerous’ or warranting an immediate driving disqualification as suggested within the article.

Every individual and every situation should be based on its own merits. However, it seems to me somewhat draconian to suggest that all those who attain 12 points should automatically be banned regardless of personal mitigation and circumstances.

For example, is a driver who picks up four SP30 convictions (driving at 33mph in a 30mph zone), over a three year period, comparable to somebody who is convicted of serious careless driving and driving with no insurance offences, committed a week apart?

This is why the courts should have discretion to decide on who should and who should not keep their driving licence. I have represented a number of drivers over the years who find themselves in such a predicament. There is no guarantee the court will find in the defendant’s favour and allow them to keep their licence.

When a driver reaches 12 points the court will disqualify them as a ‘totter’ UNLESS they can demonstrate exceptional hardship, which would then result in a reduced ban or no ban at all. This is the exception rather than the rule. A driver would need legal advice and assistance to explain the merits of such an application.

If a court does not find exceptional hardship, the consequences can be disastrous for the driver. He or she, as well as looking at a minimum six month disqualification, may lose their employment and ultimately accommodation. This is not to mention the impact on family members and dependents.

If you find yourself in such a scenario or need legal advice on any motoring issue, then please call me on 07776 184489 or email stephen.scully@lblaw.co.uk.

Privileged Wills

As I look out of my office window in our Oswestry Office, I can see a wonderful Poppy display in the school windows across from me in memory of Remembrance Day. The display is beautiful and thought provoking and reminds me of the soldiers who lost their lives at War.

We are very fortunate to have had and still have service men and women who are willing to risk their lives for our country and put themselves on the front line. As part of my job I prepare Wills for clients, I find it interesting that there are special rules relating to Armed Forces personnel who may not have the advantage of being given time to prepare their Wills in the setting of a solicitors office.

It is a general requirement for a Will to be in writing and signed by the person making the Will in the presence of two independent witnesses. You can imagine that if a member of the Armed Forces found themselves suddenly in a life threatening situation, they may feel the need to express their wishes regarding their Will but would not necessarily have the resources or capabilities of doing so.

Thankfully there are special provisions within Section 11 of the Wills Act 1837 which provides that any soldier in military service, or any mariner or seaman being at sea, may dispose of his estate without the requirement of the above formalities having to apply. This is called a Privileged Will and allows for the member of the military service, in the above conditions, being able to make either a written or an oral Will, and if it is in writing the requirement for witnesses does not apply. Witnesses are required if the Will is an oral Will as otherwise there would be no evidence that it had been expressed. The intentions of the person making the Will, and the witness’s ability to ensure that these wishes are carried out, is sufficient to establish that a Will had been made by the person in the forces.

The legislation also provides that where a member of forces is under the age of 18 they too can make a Privileged Will which is in contrast to the normal rules for preparing Wills where you must be over 18 to make valid Will.

This reminds me of the stories told that so many young boys under 18 enrolled themselves to join the forces in an effort to support our country and it is heartening to know they will have the ability, when in active duty, to ensure their possessions and assets can reach their loved ones.

Fortunately most of us can make our Wills in more comfortable surroundings and its always best, even for members of the Armed Forces, to prepare Wills in advance to avoid having to use these special provisions. Our specialist team at Lanyon Bowdler are available to guide you through the process.

European Law Rescues Victim of Uninsured Driver

The High Court recently ruled, in the case of Lewis v Tindale and MIB, that the catastrophically injured victim of an uninsured driver, injured in an accident on private land, should be compensated by the Motor Insurers Bureau (MIB). The MIB are a body who compensate victims of uninsured or untraced drivers under the terms of legal agreements.

Whilst looking for somewhere to fish the claimant was found on farmland owned by the first defendant. The first defendant chased the claimant across several fields in his 4x4. Eventually the first defendant drove through a fence and, in consequence, ran the claimant over. This caused a catastrophic spinal cord injury and left the claimant tetraplegic. The first defendant did not have insurance, and the claim was also brought against the MIB. The MIB denied liability and argued that because they were only liable to compensate for accidents “on a road or other public place” and not on private land they were not liable. In 2014 the European Court of Justice had ruled in the case of VNUK that EU Law required accidents on private land, caused by vehicles, to be covered. It was not clear, however, how the decision of the European Court could be enforced through the English Courts.

An important finding was made that the MIB was an emanation of the state and that the European Directive which makes motor insurance compulsory, can be relied upon directly against the MIB. The Court found, applying the principles of the case of VNUK, that the MIB was required to compensate Mr Lewis under the European Directive.

European Law has benefited an innocent victim of a road traffic accident, who would otherwise have gone uncompensated for his life-changing injuries, and is an example of a law that will need to be carefully considered as part of the withdrawal from the EU. There are countless other laws which require due consideration.

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