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Childcare, Shielding and Furlough

A very common question raised by both employees and employers alike following the announcement of the third national lockdown in England has been whether (i) parents who stay at home to look after their children following school closures and (ii) those who are shielding in accordance with public health advice can be furloughed under the Coronavirus Job Retention Scheme (“the CJRS”).

The short answer is that, in accordance with the government’s published guidance on the CJRS, employers can, but do not have to, furlough such employees.

However, some of the commentary that we have seen in the media and online has implied, if not expressly stated, that such employees can be furloughed regardless of the circumstances – including where additional labour costs would be incurred (e.g. as a result of temps being engaged or existing staff working extra hours) to perform work in their place.

It would clearly be an abuse of the CJRS to furlough any other employees and engage substitutes especially for the purpose of doing their work. (To be clear, we are not talking about employees who are not furloughed picking up within their normal working hours for no extra pay tasks of the type that could or would have been have been performed by a furloughed employee had they been working – which is certainly permissible.)

In our view an employer will be taking a risk in not applying the same considerations to employees who are staying at home to look after their children or who are shielding, unless and until a further Treasury direction (which sets out the formal rules of the CJRS) is issued, or at least the published guidance on the scheme is amended, to expressly state that this is allowed. (To be clear, the current Treasury direction does not do this, and although the government’s current CJRS guidance for employers and CJRS guidance for employees confirm that such employees can be furloughed, it does not purport that this is regardless of whether the purposes of the scheme are otherwise complied with.)

There are significant consequences for employers who make inappropriate claims under the CJRS. HMRC has made it clear that it will audit claims and that amounts found to have been claimed inappropriately will be required to be repaid – leaving the employer out of pocket at least in this regard (unless it obtained the agreement of relevant employees to recover such sums from them, and they are willing and able to enforce those agreements). Further, employers who are found to have acted deliberately in wrongfully claiming grants under the CJRS are liable to pay a penalty of an amount equal to the sums wrongfully claimed and also face prosecution.

Proposed Reforms in Relation to Changes to the Small Claims Court Limit

In 2017 the government announced proposed reforms in relation to changes to the small claims court limit in personal injury claims from £1,000 to £5,000 in relation to road traffic accident claims, and £2,000 in other personal injury claims. The idea behind the reforms means that claimants who suffer injuries deemed to be worth less than £5,000 in a road traffic accident and less than £2,000 for other personal injury claims will need to make their claim without legal representation as they will not be able to recover any legal costs.

The original date for implementation of April 2019 has now been postponed on three occasions with the latest expected date of implementation of 6 April 2021. However, with only three months left to go there is still little information available as to how exactly the system will work, as the Ministry of Justice have still not published the rules and procedures.

The world is dealing with COVID-19, which has impacted everyone in some form, the delay of publication of the rules cannot solely be down to the pandemic. The proposals for the reforms date back to 2017 and if the implementation date is to go ahead, early publication of the rules and procedures is critical. I have always had serious concerns in relation to the proposed changes, because of the impact being unrepresented by a lawyer may have on injury victims.

There are many aspects of the reforms that have not been thought through and an unintended consequence may be to drive claimants into the arms of claims managers. What is clear is that there appears to be a big issue in relation to what happens if the value of a claimant’s claim cannot be agreed. There is supposed to be a system to avoid the need for the claimant to have to go through the small claims court, but it does not appear that at this stage, a workable solution has been found. The system has only recently been reformed, and that is working well so surely there is no need for any further reform. The fact that so many issues still need resolving, over three years since the reforms were proposed is an indication that things should be left as they are.

It is not surprising that the insurance industry is now calling for the Ministry of Justice to publish the rules, because, of course, they want claimants to be unrepresented in bringing their claims. If the reforms are not to be scrapped, I would like to see the government take their time in considering the reforms, to ensure personal injury victims are not deprived of access to justice. The delays in publication of the rules are not benefiting anyone.

I am also concerned some claimants may be waiting for the reforms to come into force before commencing their personal injury claim, as they may believe it is better for them to deal with their claim directly with an insurer, without legal representation, as this will mean more damages for them on conclusion of the claim. However, this will not necessarily be the case. The insurance industry does not want claimants to be legally represented, because they know a claimant will usually be advised by their legal team to obtain medical evidence in support of their claim. This will ensure that the injuries suffered, and their outcome, are fully investigated which can often lead to an increase in the value of a claim. The legal team will also advise the claimant against consideration of any offers which are made before any medical evidence is obtained. This can be frustrating for the insurers as they want to settle the claims as soon as possible for the lowest amount possible. Most importantly most clients will have no idea as to the likely award that would be made by a court, and there is a serious risk of insurers taking advantage of unrepresented claimants.

I am also concerned that some potential claimants may be waiting to start their claims because of the COVID-19 pandemic. These claimants should not wait. The current proposed date is 6 April 2021 and that will soon come around and there is every chance COVID-19 will still be prevalent at that time.

We can offer clients over the telephone or on a virtual platform such as WhatsApp or Zoom. I have started several new cases using virtual platforms as a way to provide appropriate advice and this has worked well.

The role of the legal team is more than just obtaining the correct compensation for the victim of a personal injury claim. It is also about ensuring clients have the appropriate rehabilitation to provide them with the best possible outcome in relation to their injuries sustained. And to help those with serious life changing injuries have all the right information with respect to their entitlement to benefits, and organisations, in their area, which can provide them with help and support, and to support them when going through the legal process. Having this team approach means it allows a claimant to focus on the most important thing, which is recovering from their injuries.

I would encourage anyone with a potential claim not to delay and to seek advice as soon as possible. The tariffs under the reforms mean damages for whiplash cases will be much less than they are now, and it is still not clear whether or not this will only apply to an accident after the implementation date, so it is better to start a claim as soon as possible. COVID-19 does not appear to be going away any time soon and whilst it is not clear whether the current reform date of 6 April 2021 will be met, changes are likely at some point in the future.

For more information please contact our personal injury team.

Can Children Move Between the Homes of Separated Parents (UK) During Lockdown Three?

  • Guidance for England was published on the 4 January 2021 and states that individuals may not leave or be outside their home except when they have a reasonable excuse. A reasonable excuse includes continuing existing arrangements for contact between parents and their children where they live apart.
  • The president of the family division of the high court (England and Wales) noted that this does not mean that children must move between homes, the decision should be one for the parents to take after assessing their circumstances.
  • Parents are required to make a decision after a sensible assessment of the circumstances including the children’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other. It is an assessment that should be made taking into account child welfare issues and is something that many parents may require assistance with from a qualified family practitioner.
  • There will be many circumstances that may impact this decision, for example if the children have been instructed to self-isolate by NHS Test and Trace. Where that has occurred the parents or guardians of the child should arrange for that child to remain at the same address during their period of self-isolation and make alternative arrangements for ongoing contact, for example video or FaceTime calls.
  • There are arrangements where one parent travels a significant distance in order to exercise contact with their child. Such travelling may involve the parent moving between different counties and again may impact the decision in respect of continuing those contact arrangements during the lockdown period.
  • Of course parents are right to be concerned, as whenever a court makes or varies a child arrangements order a warning notice is attached to the order itself warning of the consequences of failing to comply with it. Failure to comply with a child arrangements order is important and needs to be taken seriously, as a breach of the same may incur a fine or imprisonment. The court will not impose such penalties if it is satisfied that the person had a reasonable excuse for failing to comply with the provision. Again, if there is any concern in relation to lockdown 3 resulting in a breach of a court order the parent should consider taking urgent legal advice.

For more information please contact a member of our family team.

Foreign Divorces

For many years England and Wales have been considered the "divorce capitals of the world" for wives. There are several reasons behind this, which include the relative ease and straightforwardness of the English divorce procedure and the duty upon the court to regard the contribution made by those who look after the home and care for others in the family as being equal to that of the main breadwinner. Perhaps one of the most important reasons for the popularity of using England and Wales for divorce however is the ability of the English court to share pensions between spouses and the 50:50 starting point for capital distribution upon divorce.

On 31 December 2020 the UK will leave the EU and with it, overnight, will disappear decades of reciprocal arrangements between the UK and the 27 countries of the EU along with a host of intertwined regulations. No one knows yet what, if anything, will replace them and how long it will take for a new regime to be set up.

What Happens Currently?

Under current EU treaties if one half of a couple issues divorce proceedings first in a member state that member state establishes jurisdiction over the divorce. For wives in particular, who can show a connection to England and Wales, being able to issue in England and Wales first to protect their financial claims here has been an important asset. After 31 December, this will no longer be the case

Lanyon Bowdler is seeing a huge increase in cases involving British couples who have either lived or are living in Europe, particularly those with houses in Spain, Greece and France. There has been a sudden surge of people instructing our family department at Lanyon Bowdler, particularly those who have lived in Europe with their spouses who recognise that it is important for them to issue divorce proceedings in the UK before 31 December to ensure that the courts here can give them part of their spouse's pension and a fair settlement. The new divorce online service in England and Wales is so quick and easy it has been a godsend to many. After 31 December it is likely that we will revert to the old system whereby whoever issues first in a European country, cannot be guaranteed that they will be able to establish jurisdiction and there will be many expensive cases dealing with the argument of where the divorce should take place.

Establishing that the courts here should deal with the divorce is not the only difficulty that will arise after 31 December. Reciprocal enforcement of financial orders in between the UK and the member states is also going to be affected by the UK leaving the EU. There the situation is less certain as the system for reciprocal enforcement is notoriously slow. Although we do not yet know what will happen to the current system of reciprocal enforcement, waiting to enforce a UK order in Europe after 31 December 2020 is a risk. Anyone with a UK order that needs to be enforced abroad should begin the process of enforcement now in the hope that once started, the member state will continue the enforcement process after 31 December.

The Rugby Brain Injury Claims

It was recently reported that a large group of ex-rugby players, some of whom are only relatively recently retired, are bringing claims against rugby governing bodies following the shocking news that they have been diagnosed with a form of early onset dementia and probable chronic traumatic encephalopathy. Those bringing the action claim that their diagnoses have arisen from negligent mismanagement related to repeated head injuries and concussions sustained throughout their careers. A number of current and former players have since publically shared their own concerning experiences, including World Cup winner Kat Merchant, who recently told the BBC that at the age of 35 she suffers ongoing symptoms of concussion and has a lower cognitive capacity than previously.

What Should Be Considered?

These cases will doubtlessly be complex and multi-factorial, but, in order to be successful, the claimants will essentially have to prove that they were owed a duty of care by the defendants before proving that the defendants breached the relevant standard of care that applied throughout their playing careers. They will then have to show that their diagnoses were more than likely caused by such a breach or breaches by the defendants. Another key factor to be considered will be the degree of risk to which a player will have consented to by taking part in a high impact sport such as rugby, whilst any court decision would likely seek to avoid adversely impacting and hindering a desirable activity. Rugby is a sport enjoyed by millions across the world and brings many benefits such as physical fitness, discipline and social interaction and any court judgment will likely, as a matter of public policy, be cautious not to detract from these benefits.

It is unusual to see such high-profile and widespread litigation arising in a sporting context, although the above claims are not without some sort of precedent. In 2011, a class action lawsuit was brought against the NFL by a group of former American football players, leading to the creation of a fund specifically for players with such claims which, to date, has paid out over eight million dollars. The litigation also prompted a raft of changes to improve safety surrounding concussions. It is unclear how the claims brought in the rugby context will progress, but the claimants have already set out a list of “15 commandments” to improve safety surrounding head injuries in the game. Such requests include a limit to contact training and improved education on the issue of concussion.

Which Other Sports Have Been Impacted?

Whilst the progress of the litigation is something that lies in the hands of the relevant parties and potentially the court, it is worth noting the impact that these claims have already had by way of the significant publicity the story has generated and the number of players that have subsequently shared their story. It has also shone a light on other sports. Despite its significantly higher profile, football often appears to be playing catch up in its implementation and application of safety surrounding head injuries, something highlighted by Alan Shearer in his 2017 documentary ‘Dementia, Football and Me’. This was starkly evident when Arsenal defender David Luiz recently played on for 40 minutes after suffering a head injury before eventually being substituted. The impact was so severe it caused a fractured skull to his opponent, Wolves striker Raul Jimenez, requiring emergency surgery.

Whilst the circumstances of the claimants that have ignited the litigation in rugby are tragic, the increased publicity has prompted further debate and put significant pressure on sporting governing bodies to ensure that the sports they govern are as safe as they reasonably can be. This increased awareness of the risks of concussion can also benefit wider society, with the NFL litigation leading to considerable progress in the medical sector’s understanding of chronic traumatic encephalopathy. Such benefits can apply beyond the high-profile sporting sphere and, whilst the priority of most personal injury claimants is to obtain a settlement that seeks to improve their quality of life following their injury, we often see claimants who want to ensure that lessons are learned and that other people don’t suffer in the way they did. Such benefits are often just as important to our clients as the settlement itself and are benefits that can be salvaged from desperately sad situations, such as those the rugby claimants have found themselves in.

Making Christmas Easier

For many disabled people, Christmas can be a difficult and lonely time. According to the Office of National Statistics, the proportion of disabled people reporting feeling lonely ‘often or always’ is almost four times that of non-disabled people.

The leading learning disability charity, Mencap, has also crucially identified that people with learning disabilities are seven times more likely to feel lonely in comparison to non-disabled peers. This feeling can come from something as simple as considering whether able to attend work Christmas drinks, whether the venue is accessible and who to ask at work to ensure that it is. If it isn’t, that person can feel like a burden or a nuisance to their colleagues.

The bad weather can also mean that many have to stay indoors. Have you ever tried to push a wheelchair through snow and ice, or steer an electric wheelchair through wet leaves that haven’t been swept away? It can only be compared to hitting black ice with your car – terrifying and dangerous. The overcrowding of bars, restaurants and Christmas markets can make one feel excluded too. People often comment that they ‘didn’t see you down there,’ there’s no chance of ever reaching the bar, and, more often than not, the disabled bathrooms and lifts are being used and abused by non-disabled people because it’s so busy.

People with autism may find the loud sounds of Christmas festivities distressing; going out for a Christmas roast often means being confronted with a lack of easy-to-read menus; Christmas high street shopping is also a no-go due to aisles overloaded with wrapping paper or Christmas knickknacks making it difficult to navigate for anyone in a chair or with a visual impairment; care facilities often face staff shortages during the Christmas break, leaving some without the care they need and resulting in a lack of independence. Often communicated with significant behaviour changes, the underlying message might be:

  • “I’m overwhelmed.”

  • “You changed my schedule.”

  • “Why did you put a tree in our living room?”

  • “There are too many people stuffed into this room.”

  • “I am on complete sensory overload.”

While all of these ideas won’t work for everyone, here are some ideas for you to try to create a positive time of celebration for each family member.

Who Needs to Know?

Many times extended families get together, and yet cousins or friends may not really understand the individual with the disability. It might be helpful for parents or the person with the disability to send out a quick update to family members prior to an event.

“It Is Better to Give than to Receive”

Often we think our family member with a disability should only be the recipient of gifts, and not the giver. How can that person use an area of interest or gifting to provide something for others? Would it be the gift of a dance or song? Could that individual provide the cakes for dessert? Might that person enjoy a trip to a local shop to choose something for each guest or family member? Find a way for that individual to also receive the joy of giving.

Prepare in Advance

What is the best way for your family member participate in the holiday traditions? Be creative. Think of ways you have made the holiday meaningful and consider ways your family member with a disability may be involved.

Put Together a Schedule of Events for Your Party

Whether in words and/or pictures, let the person know the planned order. Some individuals enjoy crossing off or removing the individual schedule items as they are completed.

Visit the Room Ahead of Time

Many times we redecorate or rearrange rooms to fit in more people. Consider setting it up a day ahead and visiting that room without people in it. Let the individual explore the changes without the added stress of people. Perhaps leave something on a chair or in a certain place so that you can “reserve a spot” for the event when you arrive. The individual will know to find that space or item to make a more comfortable entry.

Give That Individual a “Job” to Do

Perhaps they could be the photographer, back massager, coffee or beverage server, greeter (be the first to arrive and assimilate guests more slowly – often a better choice for some), or card distributor. A helping role will not only use the gifts of an individual, but also gives the person a clear sense of what to do in that environment.

Designate a “Safe Zone”

It might be helpful to show that family member a quiet and designated space in the home or building where there would be a calming and preferred activity. It might be a rocking chair, a favourite book, or quiet classical music in a more isolated space where one might be able to find a refuge if the senses get overloaded.

Everyone should be mindful of those individuals that may feel isolated this festive period. We are becoming more environmentally conscious and have stopped sending Christmas cards, but you can show that you care in other ways. Volunteering in your community is a great way to meet new people and maybe learn from one another. Feeling awkwardness towards disabled people is no longer a valid excuse to isolate and exclude that colleague, neighbour or person in your class, who is part of the disabled community. Making things accessible doesn’t cost the world and can make a big difference in combating isolation. It is important to note that as we approach a new year, disability does not discriminate, and each and every one of us could become disabled at any time. If that were you, how would you want others to treat you?

Furlough Scheme Extended to 30 April 2021

The Chancellor, Rishi Sunak, has announced that the Coronavirus Job Retention Scheme is being extended for an extra month, until the end of April 2021.

He has also announced the government will continue to pay up to 80% of wages until the end of the scheme. When the scheme was extended to 31 March, the government committed to that level of contribution only until the end of January, with the level of contribution after that date to be subject to a later review.

For the full announcement from the Treasury, click here.

Ask A Lawyer – Careers in Law

I have recently been working with Shrewsbury Colleges Group to answer some key questions that students have about careers in law. I was grateful for the thought-provoking questions posed by their students as outlined below.

What Is the Most Important Thing You Have Learnt from Your Experience in Law?

I think the most important thing is perseverance and being able to roll with the punches. There are days when things just do not go to plan and you have to really push to make sure you have done all that you can. Sometimes that means putting in extra hours to get the job done and sometimes it means taking a step back and adapting to new information and changing your strategy. It is really important to be able to provide a service to clients where they can be confident that whatever comes up, you will be able to handle it and protect their best interests to the best of your ability. COVID-19 has been a great example of this where we have all had to learn how to work virtually and to utilise new technologies to get the job done.

Is the Role of Solicitors Similar in All Law Firms?

In a nutshell, a solicitor’s role is to assist in preparing a legal case and to provide legal advice to clients. However, what this means in terms of your day-to-day role can be really varied depending on the firm, the work you do, what kind of clients you are working with and your role within that firm. Different firms have different set ups – some where work is done collaboratively within a team of people & some where you are more of a lone wolf. Equally, different types of clients will mean that you will have to adapt and deal with them differently – the role of someone who works in a corporate department dealing with businesses is quite different from the role of someone who works in a family law department dealing with individuals. In addition, your own role may be varied depending on whether you are a team leader as well as a solicitor and whether you are responsible for any specific additional tasks or projects within the firm (e.g. we often have one person who is responsible for keeping our precedents updated as well as their day job). As well as solicitors, there are other roles within law, such as legal executives, paralegals or assistants and secretaries. All have slightly different responsibilities and are a vital part of the team.

The variation in roles and duties within a firm is part of the reason why it is important to properly research the firm you are thinking of applying to, and to try and get a good idea of their culture and whether you feel you are a good fit.

What Professional and Personal Skills Do You Need to Succeed in This Field?

  • Good communication skills – particularly the ability to listen to others. This is really important as you need to be able to communicate well will clients, your supervisor, junior members of your team and third parties.

  • Attention to detail – clients and colleagues rely on you reading everything carefully with an analytical approach. You need to be meticulous with your work so that everyone, including yourself, can be confident that if you say the answer is "X", that it is the case.

  • Common sense

  • A solution-orientated approach to problems.

Why Did You Choose a Career in Law?

It ticked two important boxes for me in terms of what I felt I needed to have as a fulfilling job. The first one is I have always enjoyed working with people and I felt that law would give me good opportunities for that level of interaction and client care. I enjoy speaking to my clients and helping them wherever I can. I also enjoy working with my colleagues and the team-orientated approach we have towards work. It is a really enjoyable and supportive environment to work within.

The second is that I have always loved to learn new things. I never really liked the concept of doing a job that would be the same day in and day out. Law is never like that. The law itself is constantly changing. The clients and the difficulties they are facing are always unique, albeit sometimes there are recurring themes. As a consequence, I am always challenged and interested by my work.

What Is a Typical Work Day Like?

Depending which area of law you specialise in, your day will really vary. I specialise in personal injury and, in particular, catastrophic accidents resulting in serious injuries such as amputations or brain injuries or even death. There is no real ‘typical’ day as what I do is very varied each day. Sometimes I will be taking witness statements, sometimes I will be scrutinising reports we have had from experts and sometimes I will be preparing legal documents related to the cases.

How Demanding Is a Career in Law? Do Different Areas Require You to Work More Hours than Others?

I would say it is a demanding career. It is not something that is a 9 to 5 job. As I have already mentioned it is quite challenging at times, both due to pressing deadlines and the fact the work in itself can be complex and difficult. That said, I think it is a very rewarding career and one that is stimulating and interesting. One of the difficulties is that if you want to offer a good service to clients, it often means that you have to be flexible and prepared to do extra work when needed. For instance, I have had times when I have spoken to witnesses or clients in the evening or the weekend because that was the only time they weren’t working. Equally I have had times where something urgent has come up and had to be dealt with there and then.

Different areas do have different demands and different firms have different expectations. For instance, in a regional firm such as Lanyon Bowdler, the hours are not as extensive as those in London. Some departments do have a culture of more late nights, but generally speaking I would say most areas of law are pretty demanding. I would always advise looking into the areas you are interested in; doing work experience in those areas if at all possible and also investigating the firm that you are applying to. Most firms are fairly open about their requirements and should be able to give you a good steer on this.

Failings in Maternity Care Confirmed by Donna Ockenden Report

This year we have united in pride and admiration for our NHS but today’s report reminds us that we must also accept that in the past not everyone has experienced the standard of care from the NHS that they deserve.

Today’s report from Donna Ockenden highlights shocking examples of failings in maternity care provided at the Shrewsbury and Telford Hospital NHS Trust between 2000 and 2019. The report identifies disappointing and deeply worrying themes, which have jeopardised patient safety and caused harm to babies and mothers for years.

Women at their most vulnerable were not listened to and were denied empathy, appropriate care and the opportunity to deliver their babies safely. A full list of the failings can be found within the report linked here, but the most harrowing findings include:

  • The failure to appropriately risk assess pregnancies. There was little or no discussion with the mothers about options for delivery and the risks involved. Where a mother was to give birth was decided for her, without full disclosure of the risks and options available.

  • There were a significant number of cases where midwives and obstetricians did not demonstrate an appropriate level of competence in particular in relation to knowing when to escalate, the interpretation of foetal wellbeing traces and the use of oxytocin.

  • There is disturbing evidence of a number of repeated attempts at vaginal delivery with forceps, sometimes with excessive force causing significant injury and death.

  • The Trust perceived their low caesarean rates as “good care” when, in reality, this created a dangerous culture where women had little freedom to express any choice on mode of delivery. In some individual cases the report recognises that earlier recourse to a caesarean delivery would have avoided death and injury.

What happens next?

As we at Lanyon Bowdler fight for justice for those families who have been affected, we must also look to the future. This is our local trust. Our staff, friends and family all give birth here and so this is an incredibly personal cause to our team.

Alongside specific recommendations for Shrewsbury and Telford Hospital NHS Trust, the report has identified the following seven essential actions, which must be implemented immediately, across nationwide maternity services:

  • Enhance and strengthen safety by increasing partnerships between trusts and local networks.

  • Ensure women and families are heard.

  • Staff who work together must train together.

  • There must be robust pathways in place for managing women with complex pregnancies.

  • Staff must ensure that women undergo a risk assessment at each contact throughout the pregnancy pathway.

  • All maternity services must appoint a dedicated lead midwife and lead obstetrician both with demonstrated expertise to focus on and champion best practice in foetal monitoring.

  • All trusts must ensure women have ready access to accurate information to enable their informed choice of intended place of birth and mode of birth, including maternal choice for caesarean delivery.

The second part of Ms Ockenden’s report will follow in 2021, however it is expected that the Trust acts upon her recommendations immediately. Improvements must be made to ensure the maternity services at our local trust are safe.

We have profound sympathy for our clients and the families that have suffered indescribable loss. If you would like to discuss a potential claim, please contact us on 0800 294 5915 or via our website for a free consultation.

The Father Christmas Risk Assessment

I regularly represent HGV drivers after they have been injured, while out driving or more often when collecting or delivering loads. Christmas is normally the busiest time of the year for HGV drivers and it struck me recently that the role of a HGV driver is not that far removed from the role of Father Christmas, whose main job is delivering goods to children.

I often have to advise HGV drivers regarding the duties owed to them by their employers under the various regulations, so for a bit of Christmas fun I thought I would look at the risks faced by Father Christmas at work. To make things more straightforward I have assumed that Father Christmas is employed.

His employer should, first of all, carry out a risk assessment of all the tasks he does, which would undoubtedly identify the risk of injury due to the amount of manual handling he would have to do, so the Manual Handling Operations Regulations would need to be considered. The employer clearly cannot avoid Father Christmas having to lift anything, so they would have to take steps to reduce the risk of injury to the lowest level possible. Providing him with smaller sacks to carry the presents in would be a good start, so that he is not lifting too much weight at any one time.

Health and Safety Impact on Sleigh Riding

The sleigh would have to be considered in light of the Provision and Use of Work Equipment Regulations, which require it to be constructed or adapted as to be suitable for the purpose for which it is used or provided. When selecting it, the employer has to have regard to the working conditions and to the risks to the health and safety of Father Christmas while using it. I suspect that to comply with the regulations a fair few modifications to his current sleigh will be required.

The employer would certainly have to consider the Work at Height Regulations and would have great difficulty in complying with them, as access to buildings via chimneys is clearly not safe. Should it be a white Christmas, or an icy one, Father Christmas would certainly be at risk of slipping and falling, so the Workplace (Health, Safety and Welfare) Regulations would also have to be considered.

Travelling at high speeds around the world in very cold conditions would also bring the Personal Protective Equipment at Work Regulations into play, and I doubt that a red jacket and black wellies would be considered appropriate PPE.

If Father Christmas is to be able to deliver all of the presents on time he will not have time to have much of a break, so his employer would be well advised to ask him to opt out of the Working Time Regulations.

Who knew that the job of Father Christmas was so hazardous?

The Importance of Music in Rehabilitation

For most of us music plays a part in our daily lives; whether listening to the radio during our daily commute, playing an instrument as a hobby or even in our profession. If someone had said ‘music therapy’ to me prior to working at Lanyon Bowdler, I would have probably associated it with listening to different songs depending on a person’s mood. There is, however, far more to it than one might think.

What Is Music Therapy?

The BAMT (British Association for Music Therapy) describes music therapy as ‘an established psychological clinical intervention, which is delivered by… music therapists to help people whose lives have been affected by injury, illness or disability through supporting their psychological, emotional, cognitive, physical, communicative and social needs.’

When asked about the type of therapies a person may require if they have difficulties with their mobility, speech or even their cognition, music is usually unlikely to be one of the common answers. Traditionally, people conclude that the individual may require physiotherapy, or speech and language therapy, and it is unlikely someone would consider music as being able to assist these problems. However, music can be as versatile in how it is used as a therapy tool, as it is diverse in genres. Music therapy can be utilised as a complimentary therapy, standalone therapy or as a precursor to enable fuller engagement in other types of therapies.

How Does Music Therapy Work?

Music therapy can assist both children and adults with an acquired brain injury (ABI), traumatic brain injury (TBI) or other cognitive difficulties. Brain injuries change lives and inevitably have a large impact on the individual and those caring for them. Music therapy can be used to assist individuals suffering with a wide array of difficulties stemming from a brain injury, such as; aphasia, limb movements, gait and balance issues, speech and language, personality changes and much more through varying stages of rehabilitation.

There are many sub-types of music therapies, which enable sessions to target the areas which most impact the client’s daily life. The sessions can be tailored to focus on emotional, social, functional or neuro-rehabilitation goals. They can help develop confidence, awareness, independence and communication skills, which are so important in rehabilitation.

We were extremely fortunate to receive a training session recently from Chroma, a national company providing bespoke music rehabilitation to clients across the country. If you would like more detailed information surrounding music therapy, or their services, please click here.

How Are We Involved?

Our Court of Protection department regularly works alongside a wide range of therapy providers such as music therapists, who provide ad hoc services or are members of multidisciplinary teams for our professional deputyship clients.

As an all-service law firm our professional deputies in our Court of Protection department work closely with our Personal Injury and Clinical Negligence departments to ensure our clients are able to access services and therapies seamlessly throughout their claims, upon settlement and thereafter, as we recognise the importance of rehabilitation. If you would like more information in regards to our professional deputies and how we may be able to help you please call 01743 280280 and ask to speak to a member of our Court of Protection department.

Parental Responsibility - Is it Worth Poking the Sleeping Bear?

Parental Responsibility (PR), like your appendix, is something many people don’t think about or even realise they have until it causes problems. PR is a legal concept that confers upon certain people, usually the parents of a child, the right to be involved in key landmark decisions in that child’s life, such as their schooling, religious upbringing, their right to leave the country, medical care etc.

In the vast majority of families parents exercise these rights together every day without thinking about it but occasions do arise when there are disagreements about how PR should be exercised and what is best for a child and, if an agreement can’t be reached with the assistance of mediation or lawyers, the Court can decide what is in the child’s best interests.

I have noticed I have been receiving an increased number of queries about PR removal in recent weeks.

Sometimes my client says it is because the other parent has shown no interest in the child for years and they don’t want to feel the other parent has a hold over them by still having PR. I sympathise entirely but have to advise my client that, if they wish to apply for the other parent’s PR to be removed, they will need to apply to the Court and the other parent will be notified and be allowed to participate in the case. A controlling or vindictive parent may see this as the perfect opportunity to ask for contact with the child without having any serious intention of actually maintaining that relationship, and may use the proceedings as a means of antagonising the person making the application. I always suggest my client weighs up that risk against their reasons for applying to remove PR, as they know the other person much better than I do and how they might react.

If the parents were married when the child was born then it has also been suggested by the Courts that they do not have the right to remove one parent’s PR and, in that case, the Court might have to make an order simply limiting how one parent exercises their PR. This would still require the involvement of the other parent in the Court proceedings, with the same considerations as set out above.

The only question the Court can ask itself is “Is this in the child’s best interests?” and whilst there are cases where there is an obvious reason for removal / limitation of PR, such as where the other parent has perpetrated awful acts of violence or abuse against the child or family members and it is not in the child’s interests for the other parent to be able to make decisions about the child, these cases will be the exception rather than the rule.

It will always be specific to the facts and background of the case but I generally suggest people think very carefully about whether they want to open this particular can of worms or keep a tight lid on it until the child is 18, and the issue falls away naturally.

In other words: Is it worth poking the sleeping bear?!

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