0800 652 3371

The Not So Sombre Job of Dealing with the Administration of Estates

When people ask what area of law I deal with, the answer ‘I deal with the administration of estate’s’, usually fails to excite most people. However, this fairly seemingly sombre job of dealing with the assets and estate of someone who has passed away is a varied and incredibly rewarding job.

Carrier bags or ring binders

When you are asked to deal with an estate for the first time of a client you find that they come in all shapes and sizes, quite literally. Some people’s assets turn up in two or three carrier bags, with a jumbled array of paperwork dating back 20 years or so, and others are presented in a neat ring binder. The role of a solicitor dealing with assisting in the administration of an estate is to fit in with the needs of the executors and beneficiaries.

Getting the right music and flowers

The task of registering the death of a client and organising a funeral is usually left to family members, but on occasions where the firm has been appointed as executors, and no such persons exist I have had to do both. Whilst it may seem sad that there was no family member available to deal with these formalities, it is the work involved in finding out sufficient information to provide to the registrar and subsequently choose the right music and flowers, after speaking to friends and neighbours about the deceased, that makes the solicitor client relationship much more three dimensional.

In the search for details in relation to the deceased’s financial affairs, I have recently had to swap my suit for a ‘full forensic style’ outfit when entering a property that had unfortunately flooded as a result of a burst pipe which happened whilst the now deceased was in hospital. The water had turned most of the paperwork into paper mache which meant picking through it to look for clues on what financial institutions I needed to write to.

Classic Mercedes SL320

Disposing of a deceased’s chattels usually ends up with calls to a local charity with the remainder going to the local sale room, although some estates hold more exciting finds.

Mercedes_SL320.JPG

Whilst I have yet to come across a hidden ‘Monet’, I recently assisted executors, who lived abroad, in the sale of a deceased’s classic Mercedes at our local auctioneers, Brightwells in Leominster. Conveniently I had agreed to attend on the day of the auction, with authority to sell the vehicle if there were offers, should it not meet the reserve. The car, which had an estimate of £7,000 - £9,000, was much sought after and had attracted a lot of interest prior to the auction, and it achieved a staggering £12,500 on the day.

Fortunately I had attended the auction with a colleague, who managed to prevent me from getting carried away during the rest of the auction and going home with a particularly nice silver Jaguar XJS.

IVF Post Code Lottery

After recently watching the news I was shocked to hear the enormous discrepancies across the UK in the provision of NHS funded IVF treatment. This post code lottery has been a problem now for a number of years and sadly only seems to be getting worse.

IVF.jpg

Restricted access

The National Institute for Health and Care Excellence (NICE) has published fertility guidelines that make recommendations that the NHS should provide three full cycles of IVF treatment for women aged under forty who have failed to get pregnant after two years of trying.

Unfortunately this guidance is not binding and local NHS providers can chose how many cycles to offer on the NHS, if indeed any at all. They can also impose their own criteria as to eligibility which further restricts access to treatment.

Inconsistencies between areas

The contrast depending on where you live is stark. In Scotland you can get the full three cycles of IVF on the NHS. In Wales you can get two cycles. In England it is even more of a post code lottery. Very few offer the full three cycles. Some areas offer two cycles, others 1 cycle and a large number are refusing to fund IVF at all on the NHS.

There is a street in London where if you live at one end you may be eligible for one cycle of NHS-funded IVF but if you live towards the other end of the street you will not get any cycles funded. Surely it cannot be fair that some neighbours are getting better access to NHS care than others.

Appalling treatment of families

The NICE guidance of three cycles is there for a reason. Studies suggest that this is generally how many cycles on average you will need to conceive.

Whilst the private cost of IVF seems to vary significantly, for those woman and families who live in the “wrong” area to get NHS funded IVF they are looking at costs up to £5,000 or more for just one cycle of IVF.

The erosion of NHS funded IVF means that only those who have the means to pay privately will be able to access the treatment. The thought of whether a family who suffers with infertility can have a child or not is dependent on income is appalling to me.

Unacceptable to disregard the NICE guidelines

Professor Gillian Leng, Deputy Chief Executive of NICE, said: “Infertility is a recognised medical condition. People affected, who include one in seven heterosexual couples, should be able to receive treatment as a core NHS service.

“Infertility can have a potentially devastating effect on people’s lives: it can cause significant distress, depression and possibly lead to the breakdown of relationships. It is unacceptable that parts of England are choosing to ignore NICE recommendations for treating infertility. This perpetuates a postcode lottery and creates inequalities in healthcare across the country.”

Employment Tribunal Fees Abolished

On 26 July 2017, the Supreme Court ruled in a case brought by UNISON that Employment Tribunal Fees were unlawful since their introduction on 29 July 2013 and that the Fees Order which brought them into effect must be quashed. Claimants will once again be able to bring claims in the Employment Tribunals, without having to pay any Tribunal fees.

London_Supreme_Court.jpg

Why did the Government introduce Tribunal fees in the first place?

The Government’s intention in introducing Tribunal fees was threefold – to transfer the cost burden of the Tribunal system from the taxpayer to those who used it, to encourage earlier out-of-court settlements and to discourage Claimants from bringing hopeless claims or claims that were simply designed to cause trouble for the employer. The Supreme Court held that whilst these were legitimate aims, the Fees Order would be unlawful if it prevented access to justice, which it would do if Tribunal Fees were not set at a level that everyone could afford.

Why have Tribunal fees been abolished?

The Tribunal fee for bringing an unfair dismissal or discrimination claim was set at £250 and the Claimant had to pay a further hearing fee of £950 if the case proceeded to trial. The Supreme Court referred to evidence on the impact of the introduction of fees – Employment Tribunal claims had fallen by 66 to 70% - a “dramatic and persistent fall”. The Supreme Court concluded that “a significant number of people who would otherwise have brought claims had found the fees to be unaffordable”. A Government Report published in January 2017 had estimated that around 10% of potential Claimants had decided not to bring a claim because they could not afford the Tribunal fees (in the case of many of them, having just lost their job), but acknowledged that this was likely to be an underestimate.

What does this mean for employees (Claimants)?

  • As of 26 July 2017, Claimants can once again bring a Tribunal claim without having to pay any Tribunal fees.

  • Claimants who have already paid fees will be able to seek reimbursement of what they have paid from the Government. It is not yet clear how this will work in practice and a further announcement is expected from the Government in September 2017.

  • It is likely that Claimants whose claims were rejected or dismissed by the Tribunal in that period for non-payment of fees will be able to have their claims re-instated. Further guidance is awaited.

  • It is not yet clear whether or not Claimants who were dissuaded from bringing their claims at all because of the Tribunal fees will now be able to bring their claims out-of-time. The guidance from the Tribunals suggests that there will not be any special system put in place for dealing with any such claims: such Claimants will need to bring their claims in the usual way and request an extension of time based on the usual tests – that it was “not reasonably practicable” to bring their claim in time (for unfair dismissal claims) or that it is “just and equitable” to extend time (in discrimination claims). If Claimants want to do this, they are advised to do so promptly.

What does this mean for employers (Respondents)?

  • Respondents who have been ordered by the Tribunal at the end of a case to reimburse the Claimant their Tribunal fees may also try to seek reimbursement from the Government. Again, it is not yet clear how this will work in practice and a further announcement is expected in September 2017.

  • Employers are expected to face significantly more claims than they would have done had Tribunal fees not been abolished. However, it is perhaps unlikely that the number of Tribunal claims will return to what it once was, because two other measures that where introduced, at least in part, to limit the number of claims remain in place: employees still need two years’ service to bring an unfair dismissal claim (the change from one year’s service having been made in April 2012, a year before the introduction of Tribunal fees), and an individual must trigger ACAS Early Conciliation before bringing a claim (a requirement introduced in April 2014, a year after Tribunal fees).

What does this mean for the Government?

  • UNISON estimates that the Government will need to reimburse around £27 million in Tribunal Fees that have been paid by Claimants since 2013. The Government has issued a statement saying that they are currently working on the arrangements for a refund scheme and they hope to be able to announce further details in September 2017.

  • It is expected that there may be a surge in new claims and applications by Claimants to submit out-of-time claims and re-instate claims that were rejected for non-payment of fees. There is some concern that because the number of Employment Judges and staffing levels were reduced when the volume of claims fell, the Tribunals might struggle to cope with demand (at least in the short-term), causing delays in the Tribunal system.

Mental Health, Pain and Reality

‘Of course it is happening inside your head Harry, but why on earth should that mean that it is not real?’

This is one of my favourite quotes from one of my favourite book series. As one might expect from an author who has spoken at length about her own struggles with mental health, it offers insight into one of the biggest challenges faced by those who suffer from mental illnesses such as depression, anxiety, chronic pain and fatigue, which originate in or are exacerbated by the mind.

Mental_Heath_Pain.jpg

Recognise the signs

Many seem to believe that things that happen ‘inside your head’ are somehow less real than those that occur outside the head. As a result of this there is an unfortunate narrative that suggests those who suffer from issues such as depression and anxiety should really be able to just shake it off. They should be able to ‘turn that frown upside down’ if they only try.

Some of our own clients also face these challenges. Whether they originate from a psychological condition or from an acquired brain injury managing a mental health condition is not easy and I know this from my own interactions with them. Just because an injury or condition has no external symptoms doesn’t mean that it is somehow less challenging.

Feeling pain

An example of this is pain. Many people feel pain for all kinds of reasons during their lifetime, including both emotional and physical pain. There are some situations that are globally acknowledged to be painful, such as, having your leg cut off or losing a loved one. There are also outward signs that someone is in pain (screaming, crying etc), but again it can be hard for an observer to really discern how much pain the person is in.

I, for instance, have been known to scream if I stub my toe. It is very painful to me but I doubt others would make the same fuss. Equally, I know some people who can be incredibly stoic and reserved when they are in pain. We all react differently and the outward signs of pain, depression or emotional disturbance are not always obvious to those around us. Everyone who is in pain (whether physical or emotional) relies on others to recognise the signs that they are in pain, and also to believe them when they report how much pain they are in.

Acceptance is positive

It is not just outsiders that can disregard symptoms which have originated in, or are worsened by, the mind. Sometimes the sufferers themselves can be very resistant to the notion their symptoms may originate from this source. They worry that if this were to be the case then they could be told their depression, their pain, their tiredness etc is not real and simply something they are making up.

Often the act of recognising the psychological element of a condition can be extremely helpful. This enables the development of strategies which can then be employed to help reduce the symptoms. For instance, if you understand that stress is worsening your chronic pain condition then you can take steps to reduce stress as much as possible. Similarly if you know you are not just sad but are actually suffering from clinical depression, then this might motivate you to seek therapy which could ultimately lead to a good recovery.

The future

It is very encouraging that more people seem happy to talk about mental health, and there appears to be a growing acknowledgement that seeking support when you need it is a sign of strength rather than an admission of weakness. As characterised by recent comments from Prince Harry about his own battles with mental health. I hope this increasing awareness will continue, so that we can work towards a culture where no one will be scared to reveal they need support for fear they may be told they just need to get over it.

However, at the same time as we are experiencing the start of a culture shift, we are seeing a huge lack of support for Mental Health Services. Official figures have revealed that between 2010 and 2015, NHS spending on children’s mental health services fell by nearly £50 million.

A recent survey carried out by the Association of Child Psychotherapists, British Association for Counselling & Psychotherapy, British Psychoanalytic Council and the UK Council for Psychotherapy revealed concerning results with 84% of the 3,000 counsellors, therapists and psychoanalysts claiming it has become more difficult for children to access the help they need, with more severe levels of illness required before help can be accessed.

Worryingly 67% said that waiting times had increased over the last five years and 33% say their workplace was facing downsizing or closure.

I sincerely hope, that going forward, the government will put reorganising the mental health provision in the UK as a high priority.

Each Baby Counts

Colleagues have already blogged on investigations into tragic events that have occurred in the maternity units at The Countess of Chester and Shrewsbury & Telford Hospitals.

Second worst for maternity care

Now it appears that the problems are nationwide. Although still one of the safest places to give birth, the UK is second only to Malta in having the worst record for maternity care in Western Europe.

The Royal College of Gynaecologists (RCOG) launched a programme in 2015 called ‘Each Baby Counts’ aiming to reduce the number of babies who die or are left severely disabled as a result of incidents. Now a detailed report has been published.

Baby_Feet.jpg

The RCOG report looked at 1136 stillbirths, neonatal deaths and brain injuries that occurred on UK maternity units during 2015:

  • 126 babies were stillborn

  • 156 died within the first seven days after birth

  • 854 babies had severe brain injuries (reported within seven days of birth, it is not known how many have long term disabilities)

The report found that three in every four babies may have had a different outcome if they had received different care.

Interpreting baby's heart beat

In many of the reviewed cases, problems with accurate assessment of the baby during labour and consistent issues with staff understanding and processing complex situations, including interpreting recording of the baby’s heart beat (CTG tracing) were identified.

Many of the cases investigated at local level were not thought thorough enough to allow the report authors to do a full assessment of what went wrong.

Prof Lesley Regan, president of the RCOG, said: "The fact that a quarter of reports are still of such poor quality that we are unable to draw conclusions about the quality of the care provided is unacceptable and must be improved as a matter of urgency."

Annual training

The RCOG aim to achieve a 50% reduction by 2020 in incidents during term labour that lead to stillbirth, early neonatal death or severe brain injury. The Each Baby Counts report has recommended:

  • All low risk women are assessed on admission in labour and checked to see what foetal monitoring is required.

  • Annual training for staff on interpreting CTG traces.

  • A senior member of staff must maintain oversight of the delivery suite.

  • All Trust Boards should inform parents of any local reviews and invite them to take part.

Let us hope that everyone working in maternity care will ensure the reports recommendations are followed and outcomes are improved for all mothers and babies in the UK.

More information at https://www.rcog.org.uk/eachbabycounts

Are Wills by Text or Voicemail the Future?

Texts, voicemails and emails could be considered valid Wills by the Courts, in proposals made by the Law Commission’s consultation paper published on 13 July.

Woman_texting.jpg

The Commission estimates that 40% of the adult population currently die without making a Will, meaning that their estates are distributed in accordance with the law of intestacy. When a person dies intestate, there is no guarantee that their estate is distributed as he or she intended or wished. In particular, there is no provision for co-habitees, stepchildren or second marriages or relationships under the law of intestacy.

Wills Act of 1837

The law governing the making of Wills was established by the Wills Act of 1837, and states that the Will must be in writing, and signed by the Testator in the presence of two witnesses, who must also sign the Will in the presence of the Testator and of each other.

The law that determines whether a person has the mental capacity to make a Will (“testamentary capacity”) dates from 1870.

Reluctance of many to make a Will

Some have stated that the ‘outdated’ law is one reason for the reluctance of many people to make a Will. The Commission will consider whether the law can be modernised in order to encourage more people to make Wills, and to take into account the changes in society, technology and medical understanding that have occurred since Victorian times.

Some of the Commission’s proposals are:-

  • The possibility of making an electronic Wills in the future;

  • The possibility of reducing the age at which a Will can be made from 18 to 16 (and younger in some cases);

  • The possibility of changing the existing formal rules for making a Will where the Testator has made his or her intentions clear in another form – for example, by text, email or voicemail. Court approval would need to be sought for these messages to be recognised as a Will.

  • A new mental capacity test which would take into account conditions which affect decision-making, such as dementia.

The Law Commission’s consultation closes on 10 November 2017.

Local Singer/Songwriter Wanted

Local female singer/songwriter invited to collaborate with our filmmaker Spark Media.

Guitarist.jpg

At Lanyon Bowdler we are looking for a local female artist to soundtrack a two minute film we are producing.

Whether it's an existing piece or something new we'd love to hear from you.

We require a beautiful piece of music with vocals, that depicts the beauty of Shropshire and conveys the importance of relationships.

Send details/links to tracks, or clips of music to amanda.jones@lblaw.co.uk 

Where There's Blame There's a Claim

Channel 5 showed their first episode last night of “Where there’s blame, there’s a claim” and I hope the programmes will show a fair and balanced approach to the issue of personal injury claims.

Man_with_Neck_Brace.jpg

Odd rotten apple

There is often a stigma attached to someone pursuing a personal injury claim, with people thinking that the injured party is “doing it for the money” and the compensation is like a lottery win. However, this is simply not true. Of course there will be the odd “rotten apple” trying to pursue fraudulent claims, as illustrated by the so called “Crash for Cash” of Derby, which was also featured in last night’s programme, but generally fraudulent claims are in the minority and procedures are in place to flush those claims out.

Checks for previous claims 

In order for a claim to be successful a claimant has to prove that negligence has occurred and that the negligence has caused injuries. This would involve a medical report confirming the extent of the injuries sustained. In road traffic accident claims, the issue with fraud is being tackled with the use of an ASKCUE search, which searches against a claimant to see if they have had previous claims. In addition there is a set pro forma for medical experts to follow in preparation of their medical reports.

The programme included a claim that had been made by a young lady for injuries she sustained during a negligently applied eye brow wax, a gentleman who sued the police for the injuries sustained during a wrongful arrest and two riders who were involved on the horrific “Smiler” crash at Alton Towers. The injuries sustained between the featured claimants were of varying degrees but the programme showed that any level of injury has an impact on the injured person.

Cost to NHS

The episode also illustrated that in significant injury claims, for example the young lady who lost a limb in the Smiler accident, the financial impact on the NHS in the provision of desperately needed medical treatment. The costs of the amputee’s prosthesis were between £60,000 - £70,000 on each occasion, with the need for a replacement artificial limb once every 10 years. This is a drain on the NHS and if those injuries were caused by someone else’s negligence, where there is insurance available, it can only be right that those costs are covered by the insurer as part of a personal injury claim.

No amount of money will ever be able to compensate the young lady on the Smiler, she has had to make dramatic life adjustments as a result of the injuries she sustained, and her life will never be the same again.

I hope the programme will continue to illustrate why innocent people, who have been injured through no fault of their own, have the right to pursue a claim for compensation.

Landlords Have Your Say : Consultation Opens On Selective Licencing

The term ‘landlord’ no longer conjures the image of high flying property developers who have large portfolios. Many landlords are now the ‘regular Joe’ off the street. Given the uncertainties with pensions more and more people have been investing in rental properties in the hope that this will provide for them during later years. Whether you are a career landlord or someone hoping to provide for your retirement, it has been a tough few years and it may be set to get tougher again in the Telford and Wrekin area.

To_let_sign.jpg

Areas Impacted

Consultation has opened to consider the introduction of compulsory selective licensing for landlords owning property in the Hadley, Leegomery, Malinslee, Hollinswood, Brookside, Sutton Hill and Woodside areas.

According to Telford and Wrekin Council these areas have been identified as evidence shows ‘higher rates of housing disrepair, a higher turnover of tenants, littering, fly-tipping and anti-social behavior than other areas’.

New Legislation

However, the proposed scheme comes in the wake of what has been a raft of new legislation aimed at landlords over the last couple of years. Placing upon them more red tape and restriction of tax relief.

The introduction of this scheme would be yet another financial sting to be endured by landlords.

Costs Will Build

The proposed scheme would see a fee of around £610.00 per property be paid from the landlord to Telford and Wrekin Council. Which they claim will be used to fund administration and monitoring of the scheme but will not be used to turn a profit.

If enforcement action is then required further fees will be charged.

Potential Affect On Tenants

Although it is the Council’s intentions to protect tenants it is hard to see when costs are increasing from all aspects for Landlords how they will not ultimately be passed onto tenants via raises in deposits and rent thereby penalizing the very people the council are trying to protect and stunting the affordable housing situation, which is already in crisis.

Where to Find out More

Telford and Wrekin Council are inviting views on the proposed scheme and further details of how to submit this can be found on the Council’s website.

If you require any further information on your obligations as a landlord, please contact Sian Samuel at Lanyon Bowdler Solicitors.

Learning Lessons

When a medical negligence claim is brought against an NHS Trust, it is not the individual medical professional who is personally sued. Claims in respect of failings by NHS staff are brought against the NHS Trust they work for and the case, at least initially, is handled by the NHS Resolution (historically known as NHS Litigation Authority); a separate branch of the NHS with funding set aside to deal with medical negligence claims.

Learning_Lessons.jpg

Aim of Claims

The objective of a medical negligence claim is to obtain compensation that puts the claimant in as close to the position that they would have been in had the negligence never happened. Often, the Claimant also wants to make sure that what has happened to them never happens to anyone else and therefore medical negligence claims also aim to educate the NHS Trust and by extension their staff to prevent future failings. In theory, therefore from the Trust’s point of view, the less the Trust gets wrong, the less they pay out in compensation and the more money there is in future to fund the treatment side of the NHS.

Missing the Point

Unfortunately, some Trusts appear to be missing this point.

Take for example the circumstances that led to the conviction of Ian Paterson. Paterson was a breast surgeon who has recently been jailed for 15 years for carrying out countless unnecessary cancer operations that has left hundreds of patients physically and emotionally scarred. Paterson had been suspended by managers at Sutton Coldfield’s Good Hope Hospital before being employed by Solihull Hospital. Whilst a Director at the Heart of England Trust which manages the hospitals was alerted to Paterson’s history which included an investigation by the Royal College of Surgeons who ordered Paterson to undertake a period of supervised practice, he was reportedly still recruited to clear a backlog of surgery.

It came to light during the trial that subsequently, complaints were made to the Heart of England Trust over a number of years by patients who were concerned about the treatment they had received from Paterson. Rather than investing resources to investigate these complaints and take necessary action however, the Trust reportedly swept the problems under the rug and adopted a reported mantra of “good news to true news”.

An Important Lesson

Whilst it would have cost the Trust money to investigate the complaints and take appropriate action, had they done this, they would have saved millions of pounds as well as the pain and suffering of hundreds of patients. Instead, so far, 256 patients have been awarded nearly £10 million in compensation by the Trust in respect of Paterson’s failings. This is in addition to the thousands of pounds that would have been spent to carry out each unnecessary operation by Paterson.

It is not untrue that the NHS is under a lot of pressure to meet targets and that recruiting more staff will help meet these. It is also not untrue that the NHS runs on a limited budget; however, these aims should not be met at the expense of patient safety.

The majority of medical negligence claims are brought following one off failings; however, where a Trust becomes aware that there are possible systematic failings which are leading to claims, then they need to shake the attitude of dealing with claims as and when they arise and instead invest the time and resources to stubbing the problem out at the source before it escalates. It would save them a lot of money in the long run.

Election Results - Hung Parliament and Farming

The Conservatives won the most seats, as expected, but they have fallen short of the 326 seats required to form a majority. Below we explore what the Tories promised the farming industry in their manifesto and the uncertainty of a hung parliament on Brexit negotiations.

Tractor_and_skyline.jpg

Focus on agriculture

The Conservatives have said that they have “huge ambitions for our farming industry: we are determined to grow more, sell more and export more great British food.”

The manifesto does place more emphasis on production and it commits to funding farm support until 2022 providing much needed certainty for the farming community amidst Brexit concerns.

They have promised new frameworks for food production and ‘stewardship of the countryside.’

As well as helping Natural England expand its provision of technical expertise to farmers to deliver environmental improvements on a landscape scale, from enriching soil fertility to planting hedgerows and building dry stone walls.

Need for certainty

However, a hung parliament has caused farmers to brace themselves for months of continued uncertainty as we begin our departure from the European Union.

Theresa May’s reason for holding the election was to give her a strong majority with which her party could confidently negotiate with Brussels and pass necessary legislation. Now the Tories must rely on support from other parties.

NFU president Meuring Raymond has said,

“It is important for our industry to have clarity and see certainty from a functioning administration as soon as possible…We will continue to push for the right post-Brexit trade deal, regulatory framework, a domestic agricultural policy suited to Britain and access to a competent, reliable workforce.”

Motoring Law and Farming

As summer approaches, I was recently asked to clarify the legal position in respect of Motoring Law issues that crop (no pun intended) up from time to time involving farmers and their employees …

Combine_Harvester.jpg

Driving licences and age:

Tractors and trailers

  • A person aged 16 can drive a tractor as long as it is not more than 2.45 metres wide and they have passed their tractor test.

  • They can also drive tow trailers less than 2.45m with 2 wheels or 4 wheels close-coupled

  • As a rough guide, older tractors are smaller than newer ones

  • At the age of 17, once a driving test (Class B) has been passed, a 31t tractor and trailer can be driven

  • However, a person still needs to be 21 before they can drive a combine harvester, telehandler and self propelled foragers/sprayers

Insurance

  • Employers should ensure that this is in place, expressly covering those under 17.

Mobile phones

  • The rules are the same as for other motorists…6 penalty points and a fine.

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