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Congenital Diaphragmatic Hernia

Congenital Diaphragmatic Hernia (CDH) is a potentially fatal birth injury. It can be an extremely serious condition and a newborn affected by CDH will require immediate treatment following delivery. Therefore early and accurate diagnosis is enormously important.

June 2021 is CDH Awareness Month and I suspect that not many people will have heard of CDH as it is a rare condition. Following a baby receiving a diagnosis of CDH some parents will face a heartbreaking decision, as they will have to decide whether to continue with their pregnancy. The survival rate for CDH is around 50%. Sadly some babies are severely ill after their birth and do not survive, and those that do survive often have other complex needs.

What is Congenital Diaphragmatic Hernia (CDH)?

CDH affects the organs in the abdomen and chest. It occurs when the diaphragm fails to close during the baby’s development creating a hole. This consequently allows the small intestine and liver to move partially into the chest. As a result this pushes the heart and lungs to one side impacting their growth and development.

Images available at: https://cdhuk.org.uk/about-cdh/what-is-cdh/ [Accessed 21 June 2021]. Thanks to CDH UK.

When Can It Be Diagnosed?

CDH can be diagnosed at the 12 week routine scan, but it is more commonly diagnosed at the 20 week routine scan. In some cases, the baby may not be diagnosed until the final weeks of pregnancy or after the baby is born. In rare cases, CDH can also be diagnosed later in life during routine medical appointments or procedures.

If the sonographer notices something unusual on the scan or suspects the organs are not where they should be, the mother is likely be invited for further scans and antenatal appointments. If diagnosed early, babies can receive treatment before birth which may increase their chances of surviving.

Notable symptoms of CDH which can be identified after the birth of a baby include difficulty breathing, fast breathing, fast heart rate, blue tinge of the skin, difficultly feeding, the chest may be lopsided or the abdomen may be caved in.

Treatment

Commonly the baby will undergo a surgical procedure after their birth to move the organs back into the abdomen and to repair the hole in the diaphragm. However, the severity of the condition will be assessed following diagnosis and there is a chance a minimally invasive operation could be performed during the pregnancy to help the development of the baby’s lungs.

Ongoing Problems

Babies with CDH may have ongoing problems with their lungs, hearts, digestive systems and cognitive development. They may have feeding difficulties, suffer from reflux and there is a risk of re-herniation. They can also suffer from hearing loss and have speech and developmental issues as a result of ventilation and long periods of hospitalisation.

Although most cases of CDH are diagnosed during pregnancy, a third are missed despite increased ultrasound scans and improved guidelines to aid the detection.

CDH UK provides helpful information and support if you, or somebody you know, has been impacted by CDH.

If you, or your child, has been affected by the above, please do not hesitate to contact our clinical negligence team.

Back Behind the Wheel

Driving might not be possible for everyone after a brain injury, but for many it is a realistic target, which can greatly increase independence and quality of life. As a complex and potentially dangerous activity, it is important that everyone approaches driving carefully and follows legal requirements.

There are a couple of questions, which are asked frequently.

How Can Driving Be Affected by Brain Injury?

Driving is a complex activity requiring cognitive and physical skills, as well as the ability to co-ordinate these.

A brain injury can affect these skills, as well as a range of other skills, which are relied on by driving. Some of these are listed below:

  • Poor concentration. You may become distracted or confused when there is a lot going on, or easily lose the sense of what you are doing.
  • Reduced reaction time, due to slower speed of information processing.
  • Difficulty switching or dividing attention.
  • Reduced ability to think ahead or anticipate what may happen.
  • Difficulty interpreting what is seen (‘reading the road’), which increases the time needed to make a decision.
  • Poor memory. You may forget where you are going or how to get there, or what to do in a complex road situation.
  • Poor judgement of novel situations.
  • Perceptual difficulties – e.g. inability to pick out a ‘stop’ sign at a busy junction, or to judge speed or distance.
  • Impulsive behaviour, not thinking through the consequences of actions.
  • Inability to control one’s temper or to cope with the frustrations of traffic delays.

While you may feel able to carry on driving after a brain injury, it is important to remember that it can take time to recover and to fully discover the long-term effects of the injury. It might be difficult to accept that, while you still may have the technical ‘know-how’ for driving, other skills relied on by driving have been affected. Alternatively, relatives may be overanxious to protect you if they think you could still be a competent driver. An objective assessment of your abilities could therefore be helpful for both yourself and your family.

A survivor’s ability to drive may change over time as the effects improve or worsen.

Who Do I Need to Inform about My Brain Injury?

By law, you must tell the licensing authority (DVLA in England, Scotland and Wales, and DVA in Northern Ireland) about your brain injury, as they are responsible for making the decision on whether you are safe to drive or not. You can notify the relevant authority by using the government website. Failure to inform authorities could result in a fine of up to £1,000. It would also mean that your licence is not valid and that you would be uninsured in the event of an accident.

You should also tell your vehicle insurance provider about your brain injury.

It can take over six weeks in some cases to hear back from the licensing authority. In the meantime, you should consult your doctor or neurologist as to whether you can continue driving whilst waiting for a decision.

Following the decision, you may be allowed to continue driving as normal, or there may be conditions such as needing to take an expert driving assessment, having the vehicle adapted to make it more suitable, or having a time-related licence after which you will be re-assessed. Your licence may be withdrawn, but you may have the option to reapply later.

If You Are Allowed to Keep Your Licence

You will no doubt feel very pleased and relieved to be told that you are fit to drive. Some general tips for safer, less stressful, driving should still be kept in mind:

  • When you start driving again after your brain injury, it is advisable to have another adult in the car as a passenger for the first few journeys, and to keep those first journeys short.
  • Alcohol will most likely affect you more than it used to before your injury. NEVER DRINK AND DRIVE.
  • Check with your GP about the possible side effects of any medication you are taking, particularly if this has been started recently or the dose has been altered.
  • You may find that you get more tired than usual. Do not drive when you are fatigued. Plan your journey to take account of your best time of day.
  • Plan your route before you set off, including places to stop for breaks on longer journeys.
  • Use a satellite navigation device and be sure to set your route before you start driving. This removes the need to constantly think about your route while driving.
  • Be prepared to alter your plans if you do not feel well enough or alert enough to drive that day.
  • Check the car for fuel and water levels and tyre tread before your journey, especially if you are planning a long journey.
  • Have adequate breakdown cover, and take a mobile phone with you (with credit, and charged). If you receive the higher rate mobility component of Disability Living Allowance (DLA), or scored eight or more points in the ‘moving around’ area of a Personal Independence Payment (PIP) assessment, you will be entitled to a ‘Blue Badge’ for free parking.
  • Inform your insurance company of any modifications to your vehicle or any changes in your condition which could affect your policy. Remember, if there is anything else which may affect your ability to drive, if you develop any other condition, or if an existing condition gets worse, you MUST inform the licensing authority.

If you would like to speak to a member of our Court of Protection team, please contact us.

Happy, safe, driving!

Private Law – Vaccination of Children

Following a year of lockdowns, the UK is beginning to open up again due to a vaccination programme set to vaccinate 22 million people in the UK by spring 2021. In light of this, there are considerations surrounding the vaccination of children. It is the right of any adult of sound mind to make a choice as to whether or not they wish to be vaccinated against a known disease. However, when it comes to children, it is the decision of the parents (or those with parental responsibility). If the child’s parents have differing views on the issue, the correct procedural route is to apply to the court for a specific issue order.

Before making an application before the court, it is important to be aware of who has parental responsibility for the child in question. Establishing this is the first step. If the child’s parents are married, they will each have parental responsibility. If they are not married and father is not on the birth certificate, he will not have parental responsibility but the mother will. There are also circumstances where other parties will have parental responsibility in situations where there have been previous court proceedings to apply for such. If it is that both parents have parental responsibility and they disagree over the proposed vaccination(s), one or both of the parties will need to apply to court. This will also be the case if there are a number of individuals with parental responsibility.

In the most recent case, M v H (private law vaccinations) [2020] EWFC 93, the father’s initial application was for a specific issue order on the basis that it was in the best interest of the children (aged four and six) to receive vaccinations. This was initially limited to the MMR vaccine but later expanded to include all normal childhood, travel and COVID-19 vaccinations. Following her own research online and discussions with certain medical practitioners, the mother was opposed to such vaccinations. A specific issue order was granted in line with father’s application, in accordance with the normal NHS childhood schedule. However, an order was not made for travel vaccinations or COVID-19 vaccinations, on the basis that they are too speculative and too premature, respectively.

The court’s approach was heavily guided by a previous Court of Appeal decision (Re H (A Child) (Parental Responsibility: vaccination) [2020] EWCA Civ 664) in relation to public law vaccinations. There were a number of key points highlighted for these types of matters where parents cannot agree that were set out within the judgment. These can be summarised as follows:

  • The court will become the decision maker, through the mechanism of a specific issue order, if all other forms of dispute resolution have been exhausted.
  • Parental responsibility is where an adult has the responsibility to secure the welfare of the child. It was highlighted that this is to be exercised to benefit the child, not the adult.
  • In these cases, a specific issue order will only be granted if the court is content that it is in the child’s best interests, as this is their paramount consideration. Such an order should not be granted unless the child will be better off than they would be without the order.
  • Although no order was granted with regards to COVID-19 vaccinations due to there not being any formal guidance on this, it was noted that it was “very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court”.
  • Expert evidence was not necessary in these types of disputes when the vaccinations in question have been approved and are recommended by the NHS and Public Health England. If an expert were to be required, this must be a jointly instructed expert.
  • Unless there are special circumstances, it would be very difficult for a parent to successfully object to a public health recommended vaccine.
  • The strength of a parental objection to a vaccination will not be determinative. The court has the option to order vaccinations “in the face of rooted opposition from the child’s primary carer”.
  • Overall, the benefits of vaccination to prevent the child from the consequences of the diseases that they vaccinate against, and to the population more widely from the spread of such diseases, outweighs fundamental human rights.

To conclude, although the UK is not currently vaccinating children to prevent the spread of COVID-19, once this does begin, this is useful guidance as to how the court would handle any such application regarding these vaccinations. Generally speaking, if the NHS and Public Health England are agreeable to a vaccine programme for children, unless there are special circumstances in relation to a child, it does not seem likely that the court would deny the child protection via the vaccine.

If you require further information, please get in touch and ask to speak with our family team to arrange an appointment.

Call for Equality of Arms at Inquests for Bereaved Families

A long-awaited report by MPs into the coroner service of England and Wales has recommended that families should be entitled to public funding for legal representation, regardless of how much money they have.

The report follows a review by MPs on the House of Commons Justice Committee into the activities of the coroner service, details of which can be found here.

Presently, public funding for bereaved people to have legal representation at inquests is only available in exceptional cases and depends on how much money a family has. This has often led to concerns in large and complex inquests - such as the inquests into the 1989 Hillsborough disaster where many people were killed in a crowd crush - where public bodies facing criticism are usually represented by legal teams at public expense, but the bereaved families have to fight to receive public funding to be legally represented.

The committee said it was unfair that bereaved people should not have similar representation. Bereaved people, the report said, should not be put through the difficult process of meeting complex legal requirements – and be means-tested for legal aid – when the public authorities they sometimes have to face up to in court are legally represented and funded by the tax-payer. Allowing families an automatic right to have publically funded legal representation at inquests at the most complex inquests will ensure that they can fully participate.

The report also made other recommendations, such as:

  • the creation of a national coronial service for England and Wales;

  • to invest in pathology services to ensure there coroners can access the pathology services they need;

  • for an inspectorate for that service to ensure consistent standards; and

  • for a charter of rights for bereaved people.

These recommendations are a welcome acknowledgment of the problems that bereaved families have faced for many years. For too long, there has been criticism that public bodies can “lawyer-up” to defend themselves at inquests, whilst families often have to fund lawyers privately at great expense, or go it alone at a time when they are at their most vulnerable. The Ministry of Justice should therefore act now to ensure that the committee’s recommendations are put into effect with minimal delay.

For more information or advice, please contact our clinical negligence team.

New Changes for Those Injured in Road Traffic Accidents

Monday 31 May 2021 marks the date when two significant changes come into force regarding compensation for those unfortunate to be injured in a road traffic accident. The first of these relates to the contribution which the defendant or, more usually, their insurers have to pay towards the injured person’s legal costs, and the second relates to how the compensation is calculated for what are commonly described as whiplash injuries.

At the present time, the claim for the injuries has to be worth in excess of £1,000 for the insurers to have to contribute towards the injured person’s legal costs. For the vast majority of cases, that figure will rise to £5,000, a fivefold increase. The bad news does not stop there, because at the same time, a tariff system is being introduced to determine the value of such claims, and this will lead to a significant reduction in the levels of compensation recovered. At the bottom end of the tariff system is a fixed figure of £240 for those people who suffer a whiplash injury, which takes up to three months to settle. Under the current system for valuing injuries, the same person would be entitled to receive up to £2,300, this therefore represents a reduction of almost 90%. For a whiplash claim to be worth more than £5,000 under the new system, the symptoms would have to last for more than two years.

And the Good News?

The practical effect of this on those injured is that it will be uneconomical to instruct a solicitor to deal with the claim in the way they would now, so they will have to deal with it themselves, or make a significant contribution to their legal costs. The only good news is that it only applies to accidents on or after 31 May 2021.

An online portal has been designed, which is meant to assist people to pursue their own claims and a guide of no fewer than 64 pages has been issued. I have been doing this type of work for almost 20 years. I have watched several webinars about the changes as well as attending a full day course last week and I think that I have just about got my head around it all. I think it is completely unrealistic to expect people to deal with these claims on their own.

You might wonder what the justification is for such significant changes and I have been told there are two. The first is to reduce fraudulent claims and the second is to reduce insurance premiums. I have not seen anything within the changes, which will reduce fraud; in fact I heard one barrister explain recently that it will actually make it harder for insurers to fight fraudulent claims. This is because if they allege that the claim is fraudulent but such an allegation is not proved, the injured person would be able to recover the cost of instructing a solicitor and the insurers would also incur their own legal costs. It would therefore be cheaper for insurers to simply settle such claims.

Will I Save on My Insurance?

As to whether it will reduce insurance premiums, I would not recommend holding your breath on that. According to data published by the government, during 2020, due to COVID, the number of personal injury claims following road traffic accidents fell by 47% compared with 2019, yet over the same period, car insurance premiums fell by just 1%. The reforms are based on a promise by insurers to pass on to customers any savings made, but based on these figures, I just cannot see that happening. It is about time that insurers admitted that rising car insurance premiums have very little to do with personal injury claims and the government started thinking about the rights of those who have been injured by someone else’s negligence. The absurdity of the reforms are best explained by asking the following question:

How can it be right that someone who suffers a three month whiplash injury following a road traffic accident receives £240 and has to deal with the claim themselves, yet someone who suffers the exactly the same injury, following, for example, a fall at work, receives up to £2,300 and the assistance of a solicitor? Answers on a postcard please!

For more information please contact our specialist personal injury team.

Personal Injury Time Limit Within Overseas Operations (Service Personnel and Veterans) Act 2021

On 29 April 2021, the Overseas Operations Bill received Royal Asset.
What Does This Mean for Our Service Personnel and Veterans?

Part 1 of the Overseas Operations (Service Personnel and Veterans) Act (OOA 2021) ensures that when judges are deciding whether to prosecute service personnel and veterans of an overseas criminal offence, consideration is taken for the unique context of the alleged offence having occurred abroad.

Part 2 of the OOA 2021 encompasses civil claims, including personal injuries arising from overseas operations. Such claims are now subject to an absolute limitation period of six years from the date of the incident, or six years from knowledge of the incident, meaning that judges are unable to use their discretion to allow claims after this period.

Why Is the OOA 2021 Necessary?

The Ministry of Defence (MOD) asserts that the OOA 2021 is needed to protect military personal and veterans participating in overseas operations following an unprecedented increase in the number of legal claims, in particular regarding past operations in Iraq and Afghanistan. The government claims the OOA 2021 will create certainty and protect service personnel and veterans from the continued threat of repeated investigations and potential prosecution.

The Association of Personal Injury Lawyers (APIL) publicly rejected the foundations of such claims, stating that only the MOD will benefit from such amendments to the law, as the MOD will consequently avoid liability for compensating those injured as a result of their negligence. In fact, it also remains unclear to us, as to why the MOD has chosen to deny its valiant service personnel compensation by introducing a long stop limitation date that civilians (and those our forces are serving) are not subject to. In usual personal injury claims involving occupational liability, the judge usually has discretion to allow out of time claims. This option has been taken away from those injured by overseas operations for reasons that remain unclear and unsupported.

Six years may appear to be a generous amount of time to bring a claim, however APIL has cited two main difficulties with this “arbitrary” time limit:

  • Injured service personnel are often wrongly informed they are unable to pursue a claim or wrongly informed they don’t have a valid claim by those higher in rank.
  • PTSD is a common personal injury that is sustained within the forces and its symptoms can vary enormously. Some members may be unable to talk about what has happened to them even six years following a diagnosis.

Should we be denying justice to our servicemen and servicewomen because they are not able to talk about the devastating events that caused their psychological injuries in the near future? Should we be denying justice to our servicemen and servicewomen because they were wrongly manipulated or belittled into believing that their injuries were not caused by any negligence? It is also of note that a large proportion of claims are for noise-induced hearing loss, something which may not become immediately obvious and could remain latent and undiagnosed for decades.

Proposal of Amendment to Original Bill

The House of Lords appeared to recognise these issues and proposed an amendment to the original bill, calling to exclude “actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that [Part 2] imposes in respect of actions relating to overseas operations.” This amendment recognised the importance of those who put their life on the line by serving their country overseas. Although, some have argued it did not go far enough and indirectly created a two-tier system in which civilian employees or families of deceased personnel may have been unable to make claims.

The potentially discriminatory impact of the two-tier system became a moot point as the House of Commons rejected the Lords amendment in its entirety by a majority of 357 to 268. Part 2 applies in the same way “to all claimants bringing claims connected with overseas operations against the MOD, whether they are military personnel, civil servants, contractors or local nationals” and the government states that “service personnel and veterans can continue to access the Armed Forces Compensation Scheme, which has a seven-year time limit for bringing claims.”

During the debate in the House of Commons of the above amendment, it was argued by MP Leo Docherty that approximately 94% of the claims brought against operations in Iraq and Afghanistan were brought within the six year time limit. However, MP John Healey cited findings that if the bill had been enforced since 2007, then 195 troops would have been caught and prevented from pursuing a successful claim.

Regardless of statistics, we contend that no single person prepared to put their lives on the line for their country should be denied from seeking compensation and justice for their injuries sustained as a result of doing so. We can therefore see no justification for our armed forces having less protection for personal injuries than those they are fighting to protect. For more information, please contact our personal injury team.

Spinal Cord Injury Awareness Day 21 May 2021

#SCIAD21 is reflecting on the impact of the pandemic and looking at stories of adversity, strength and survival.

Following on from last week’s Mental Health Awareness Week, I thought it would be helpful to focus on the issue of mental health and how this impacts upon spinal cord injury. The pandemic has brought its own challenges, which coupled with an injury clearly has significant bearings upon individual mental health, not only in relation to treatment and support available, but to coping strategies too, both in newly injured spinal patients and those continuing with their spinal injury journey.

My own practice includes clients across the spectrum. In terms of age I have adolescents right up to the recent, sad case of an 80 year old involved in a life-changing, catastrophic road traffic accident. I am privileged to act for these clients, who have come through their individual challenges showing an unprecedented strength of character, as well as physical resources. Mental health support is so important both in relation to the consequences of the trauma of the accident, as well as dealing with the subsequent issues that can flow from the injury on a lifetime basis.

A client’s mental health can be influenced by many things, whether it is an encouraging smile from medical staff (more difficult from under a mask in the current pandemic), a cheery word or an acknowledgement of concern from the legal team, as well as professional mental health awareness therapies together with the knowledge that such things as bowel and bladder management, tissue viability and vocational, education and employment issues are being dealt with. This also includes support from and to the wider family and friends coping with the ramifications of traumatic spinal cord injury. Regaining independence and mobility, and working towards those goals that arise at all stages of the journey are fundamentally important. Good mental health is a building block to coping with all steps of that journey. Communication is the key, whether it is with medical or legal professionals, case managers or treating practitioners.

At all times good emotional health is a significant contributor to overall wellbeing, physical recovery and coping mechanisms.

Often we see many aspects of psychological challenge whether it is anger, frustration, tearfulness and this too can have a significant knock-on effect on relationships, both at work and at home. Add to that the usual plethora of emotional daily life changes, whether it is hormonal changes, puberty or menopause, family changes with having children, family relationship changes. Financial or social related issues of every scenario created within the family dynamics. Sometimes there may be a breakdown in a relationship or the focus of a new challenge, possibly work or community independence and often there may be a reluctance to talk about issues due to embarrassment, isolation or mental health taboos. These are all difficult enough, particularly when compounded with an injury that is then brought into the mix. Often chronic pain is a common feature of spinal cord injury with more than half the individuals experiencing some form of neuropathic pain, which again can have a negative impact upon both physical and psychological health. However, having a spinal cord injury does not mean that general health can only be assessed in terms of physical injury and the psychological wellbeing of our clients is paramount. The last 12 months and the impact of the pandemic have been difficult in terms of getting clients’ medical appointments and, in particular, counselling with what normally would have been face-to-face support. Having strategies in place to help with the emotional wellbeing has been paramount.

In addition to the usual headings in a spinal injury schedule of loss including loss of earnings, mobility, accommodation, case management, occupational therapy, tissue viability, bowel and bladder management to name but a few, counselling, relaxation, diet, sporting opportunities, holistic therapies and outdoor pursuits have become even more important.

I have recently read the Karen Darke article in the April 2021 issue of the Forward Focus Spinal Injuries Association magazine and note that her comment, “My world was not limited by being in a wheelchair. Our ability to do anything is a state of mind not a state of body”.

The challenges of the pandemic have made spinal cord injury limitations even more challenging, however we are constantly inspired and humbled by the stories of adversity, strength and survival of many who have overcome these obstacles. Whilst the pandemic has made things even more challenging. it has emphasised the need to strengthen the opportunity to not only focus upon physical fitness and motivation which can give rich, rewarding and fulfilling experiences, but also the need to ensure that the mental health building blocks and opportunities were well and truly established in the first place and to ensure that once restrictions are lifted those opportunities can be further embraced.

Climbing Out was formed in 2010 by Kelda Wood, who was profoundly affected by the dramatic effect that the outdoors had on her own physical and mental recovery after a serious injury. Kelda provided a motivational speech when she attended our staff conference, stating her aim was to challenge and inspire young people in helping them gain belief in themselves and develop the confidence to realise their full potential. The programmes that she offers through Climbing Out are fully funded and available to young people of 16 to 30, but for the pandemic two of my spinal injured clients were due to be assessed to attend Climbing Out. The pandemic has pushed their ability to do this back a little, however the focus is still both on the physical and psychological challenges and improving mental health wellbeing continues to be a driving force.

For more information, please contact a member of Lanyon Bowdler’s personal injury team.

Temporary Right to Work Checks Extended to 20 June 2021

It is unlawful to employ someone who does not have the right to reside and the right to work in the UK or is working in breach of their conditions of stay. Employers have a duty to prevent illegal working and must carry out certain right to work checks on all prospective employees before their employment starts (and should undertake follow up checks for current employees with time-limited permission to live and work in the UK).

It is important employers do not make any assumptions as to a prospective employee’s right to work in the UK or their immigration status. All potential employees should be required to demonstrate their right to work, otherwise the employer will be at risk of civil penalties and criminal prosecution in the event that the right to work does not apply. Further, if an employer is selective as to which prospective employees it subjects to checks, it may be open to claims for race discrimination.

On 30 March 2020, due to the COVID-19 outbreak, the government made the following temporary changes to the right to work checks to simplify the process for employers:

  • checks can be carried out via video call (rather than in person)
  • job applicants and existing workers can submit scanned copies or photographs of identity documents for checks (instead of providing original documents)

These changes were originally put in place until 16 May 2021, but the Home Office has announced that they will now remain in force until 20 June 2021. From 21 June 2021, employers will be required to once again check job applicants’ original documents or use the Home Office’s online right to work check tool. From that date, any document checks will have to be performed in the physical presence of the potential employee, or by a live video link as long as the employer is in possession of the original documents.

Click here for the full government guidance or if you would like to discuss this further, contact a member of Lanyon Bowdler’s employment team.

Six Things to Consider When Entering into a Conditional Contract

A conditional contract is conditional on certain criteria being met and/or certain events taking place. Usually, this is obtaining a planning permission satisfactory to the purchaser developer.

So, What Should You Consider?

  • Have the conditions under the contract been adequately drafted? Ambiguous or vague conditions can lead to uncertainty in respect of ascertaining whether or not conditions have been satisfied.
  • Is the length of the contract sufficient to enable planning permission to be obtained and/or for the conditions to be satisfied and does it allow for planning appeal?
  • What happens if the conditions under the contract are not satisfied? What are the parties’ obligations? Should all or part of the deposit be forfeited, if any?
  • The land will often need to be sold with vacant possession. The parties should consider whether there are any existing tenancy agreements or licences affecting the land – these will need to be terminated in advance of the completion date.
  • The purchase price can be a fixed price, or can be a percentage of the market value of the land with the planning permission in place. Does the contract provide a means of agreeing or ascertaining the market value?
  • From a landowner’s perspective, tax advice should also be sought in respect of whether an option to tax in relation to VAT should be made in respect of the land being sold. From a developer’s perspective, the developer should ensure that a valid VAT option to tax has been made.

Of course, when entering into any form of conditional contract you need to seek legal advice and our team are on hand to assist and to guide you through the process. For further information, please contact us.

Planning and Judicial Review Reforms Announced in the Queen's Speech

The Queen, in her speech of 11 May 2021, set out the Government’s priorities for the upcoming year and a number of bills which will be debated in the near future. These include the Planning Bill which, if all goes according to the Government's plans, promises to deliver some of the deregulation of the planning system set out in the White Paper of July 2020.

The Government's accompanying document to the Queen's Speech states that the main elements of the Planning Bill will be:

  • Changing local plans so that they provide more certainty over the type, scale and design of development permitted on different categories of land.
  • Significantly decreasing the time it takes for developments to go through the planning system.
  • Replacing the existing systems for funding affordable housing and infrastructure from development with a new more predictable and more transparent levy.
  • Using post-Brexit freedoms to simplify and enhance the framework for environmental assessments for developments.
  • Reforming the framework for locally led development corporations to ensure local areas have access to appropriate delivery vehicles to support growth and regeneration.

It is likely that the proposals in the White Paper to divide or ‘zone’ local areas into growth, restriction or renewal areas will be pushed forward in some form, with the allocations to be set out in the local plan. The White Paper states that growth areas will benefit from an automatic outline permission or permission for the principle of the development, with Councils left to determine such details as layout, landscaping, scale and appearance.

Restricted areas will include areas where special protections continue to apply, and development will continue to be scrutinised in those areas much the same as they are now. In renewal areas, there will be a presumption that planning permission will be granted for the type of development set out in the local plan in that area. We await the detail as to how deregulation in renewal areas will be achieved, and how they will differ from areas currently allocated in the local plan.

Achieving the benefits of zoning (like certainty and time as well as money savings) will be dependent on speeding up the process for making and reviewing local plans. The White Paper proposes shorter statutory time limits for adopting local plans – 30 months as opposed to the five year average, as reported by the Government, and moving some of the content in local plans to national policy as well as digitalising the system.

The proposals in the White Paper and now the announcement of the Planning Bill have attracted differing views from various sectors and stakeholders within the planning system. There is likely to be some impact on local democracy. For instance, the introduction of growth areas may remove the ability for local residents to get involved in debates about the principle of major development in their area, if such development already benefits from outline permission by the time their local Councils have to make a decision. This will make it more important to increase and monitor local involvement in the local plan process.

Developers and housebuilders hope the reforms will curtail the kind of organised objections to development they see as a drain on time, resources and the ability to bring forward much needed development, including affordable housing. Some interest groups are concerned about the potential loss of local residents’ ability to be involved at application level, while other groups are concerned about the standards of houses that will be brought forward, whether the issue of impact on neighbouring properties will be side-lined and whether development will be allowed to override critical and sometimes global environmental challenges.

The Judicial Review Bill has also been the subject of debate which is wider than planning. The Queen’s speech and accompanying paper state that the Government is concerned that judicial reviews are being over-politicised and judges are being dragged into the political arena inappropriately. The purpose of the Bill is stated to be to “introduce reforms to Judicial Review to protect the judiciary from being drawn into political questions and preserve the integrity of Judicial Review for its intended purpose – which is to hold the Government and public authorities to account, apply the intent of Parliament, and protect individuals’ rights.”

Judicial Review is obviously relevant to planning and is the only way in which an affected third party can hope to reverse a planning approval which they think is flawed. The planning courts have always been concerned to maintain the division of planning decisions, which they leave to planning decision-makers such as Councils and the Secretary of State, and legal issues which are the remit of the courts, and to restrict the ability of disgruntled members of the public and developers to re-open planning arguments via Judicial Review applications. This appears to be consistent with the Government’s aspirations above. The proposals in the Bill are said to be to:

  • Allow the court to suspend quashing orders in Judicial Review to allow the authority to rectify the identified decision. This is relevant to planning as the usual position is that if a planning decision is quashed or cancelled because of a legal error, the decision has to be made again by the decision-maker. Therefore, the application has to go through the whole process again if the developer wishes to proceed with development. Potentially, with these reforms, the planning permission could be kept safe in abeyance while the decision-maker corrects its errors. Correcting the errors may mean the planning permission can be saved or it may not.
  • Reversing the decision in Cart v The Upper Tribunal which allows certain decisions of the Upper Tribunal to be reviewable by the High Court.

The devil (or the saviour) as they say is in the detail. We know what the Government’s priorities are, we know which parts of the White Paper and Judicial Review reform proposals they want to bring forward – the question is how they’re going to do it?

Shropshire Fire & Rescue Service Still Battling Large Blaze at Telford Recycling Plant

On Monday 26 April 2020, thick grey smoke could be seen billowing in the sky across Telford as a major fire broke out in the recycling centre on Greenway Polymers site in Wellington. Plastic waste and machinery caught fire at the plant sending disruption not only to nearby residents but to schools, businesses and M54 users.

It is now days later and the waste is still burning. Shropshire Fire Services are working tirelessly to control the fire and at the height of the fire over 60 firefighters were tackling the flames. Due to the complexity of the materials on fire, the fire services believe it could take around 7-10 days to resolve, with a clean-up operation potentially taking months.

It is thought that the recycling plant will now be demolished for safety reasons with the structure being dismantled to allow crews full access to the area.

Public Health England has given the following advisory message:

Any smoke can irritate airways, skin and eyes and cause coughing, wheezing breathlessness and chest pain. Chemicals in smoke can also worsen health problems like asthma and heart conditions so people should carry their medication if they are in areas affected by the smoke. Chemicals in the smoke can worsen existing health problems like asthma. People with asthma should carry their inhaler. If symptoms occur, people should seek medical advice or call NHS 111.

Fire officers have recommended that people stay away from the area and that nearby residents and businesses in close proximity continue to keep their doors and windows shut until the smoke has dispersed. Many have also been warned of the hazards of the ash in addition to the smoke.

An investigation has started to identify the cause of the fire and the environment agency is monitoring the air quality around the site as well as the water quality downstream of the fire.

If you have any of the above symptoms or experience a worsening of an existing condition, we firstly recommend that you seek medical advice or call 111. Secondly, if you go on to develop chest, heart or lung problems as a result of the toxic fumes from the fire and you would like advice, then please contact our specialist personal injury team for more information.

It is important to get advice as soon as possible and in any event within a maximum of three years from when you become aware of any problem.

Women and Babies Put at Risk at Worcestershire Royal Hospital

A senior doctor at Worcestershire Royal Hospital has been censored after raising concerns that changes being implemented within the maternity unit, in line with NHS England’s new model of antenatal care, have left wards dangerously understaffed.

Continuity of Carer

NHS England has introduced a new model of antenatal care known as “Continuity of Carer”. The model encourages women to be seen by the same midwife throughout their pregnancy and labour, with the aim that all women will be offered a continuity midwife across hospitals in England by March 2023.

However, concerns at Worcestershire Royal Hospital arose when midwives were pulled from core staffing in order to create dedicated continuity teams, leaving the maternity unit dangerously understaffed. Whistle-blowers revealed that the unit was short of five or six midwives per shift and as a result, women with high risk pregnancies were experiencing long delays in giving birth after being induced, some for up to five days.

Meanwhile, women with a continuity midwife, who were often considered low risk, were receiving accelerated care and able to skip the queue because their midwife was available straight away. For example, women in urgent need of a caesarean section were made to wait, whilst other low risk women who had been placed on the Continuity of Carer pilot proceeded to a planned or elective caesarean section first.

Jane Sandall, Professor of Women’s Health at King’s College London, previously warned that the Continuity of Carer model needed to be implemented carefully. She said, “All women should be prioritised according to need for escalation and ongoing treatment according to national and trust guidance, and whether they are in a continuity of carer model or not should make no difference to how this is managed by a trust. I don’t understand why this was allowed to happen”.

Ongoing Concerns

This follows after the Care Quality Commission (CQC) carried out an inspection at Worcestershire Royal Hospital in December 2020 in response to four separate alerts from concerned members of staff in relation to the safety of the maternity department.

A subsequent report published in February highlighted, amongst other things, dangerously low staffing levels and a reluctance by staff to raise concerns. The CQC ordered Worcestershire Acute Hospitals NHS Trust to make improvements and downgraded the maternity service from ‘Good’ to ‘Requires Improvement’.

Internal audits also showed that the maternity unit was short-staffed on the delivery suite for almost half of all shifts between July and December 2020. It is therefore worrying to hear that the same issues remain and that women and babies continue to be put at risk.

‘I Cannot in All Conscience Continue to Remain Silent’

The problems at Worcestershire Royal Hospital hit crisis point in April this year when the maternity department’s clinical director, Dr Catherine Hillman, resigned from her role after posting a message to staff on an internal Facebook page which was later taken down by senior bosses.

Within the post, she spoke out about the “gridlocked system”, saying that, “Women being cared for by core midwifery staff have been experiencing unacceptably long delays for induction of labour, resulting in bed blocking on the antenatal ward with enormous anxiety and frustration for all. Conversely, women being cared for under the continuity system have had a more streamlined experience, with timely care when required”.

Dr Hillman raised concerns that this has created a two-tiered system, where women were no longer being prioritised on clinical grounds.

However, the Facebook message was removed within hours and a further statement, supporting Continuity of Carer, was put in its place. On 10 April 2021, Dr Hillman resigned from her role, saying that the maternity unit was, “at best precariously safe” and ,“I cannot in all conscience continue to remain silent and simply watch and wait as events unfold.”

‘It’s Such a Stressful, Horrible Environment’

Since Dr Hillman’s resignation, other staff at the trust have also raised concerns. One midwife explained that, “The women have been induced medically and they’re waiting to go to the delivery suite to have their waters broken. These women are told they’re high risk and that their babies could potentially die and then they wait for days on the antenatal ward for a midwife to become available so that they can be cared for on the delivery suite. Every time, as a midwife, you go to put a lady on a monitor to check the baby's heartbeat, you are literally hoping it's there and it's all ok. It's such a stressful, horrible environment.”

It has also been revealed that four women have died at the Worcestershire Acute Hospitals NHS Trust between July 2019 and December 2020, with midwives stating that they work in fear of what might happen during their next shift.

In one incident, a women in her early 20s collapsed and died in the maternity unit after being on the ward for several days.

Future Implementation for Continuity of Carer

Despite clear issues, the roll out of Continuity of Carer is set to continue with NHS England issuing a statement last month saying, “Some potential barriers need tackling at the outset, including putting adequate staffing in place.” They consider that the model has been proven to significantly improve women’s overall experience of care and is safer for babies. However, others remain wary, particularly in regards to trying to speed up implementation across England, which may place additional burdens on midwives and maternity support workers.

Lanyon Bowdler’s award winning clinical negligence team includes members of the Law Society’s Clinical Negligence Panel and AvMA panel members. The team has extensive experience of dealing with birth injury cases. If you have concerns about the maternity care you have received, our team are happy to discuss the matter with you and guide you through the process sensitively. Please contact us.

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