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Inadequate Care for Children’s Mental Health at Telford Hospital

The Shrewsbury and Telford Hospital NHS Trust has been forbidden from admitting any new patients under the age of 18 who present solely with acute mental health needs after accusations that they have failed to keep young people safe.

This follows after the Care Quality Commission (CQC) carried out an unannounced inspection of the children and young people’s service at the Princess Royal Hospital in Telford on 24 February 2021 after receiving concerns about the quality and safety of treatment provided.

Safety Concerns

The inspection found that many children had not received an adequate risk assessment on admission and that staff "generally relied" on rapid tranquilisation, with one child receiving this 27 times during their admission. The inspection also found that staff had not received appropriate restraint training, and that some staff had not had any restraint training at all. Other concerns raised showed that staff did not fully understand how to protect children and young people from abuse and that they did not consistently follow local and national guidance for safeguarding referrals.

A Section 31 notice, which aims to prevent further harm, was issued two days later placing the trust under urgent conditions. The trust was ordered to review the records of all acute mental health inpatients under the age of 18, and not to admit any more unless they had associated physical needs. The CQC also ordered the trust to implement safeguarding systems and to train all staff working with under-18s with mental health needs to ensure they were “appropriately competent” to do so.

A Section 29a notice was also issued on 12 March which accused the trust of failing to take account of children, young people and their families’ individual needs and preferences, particularly in regards to food choices for those with eating disorders.

As a result of the inspection, the trust’s rating for children and young people’s services was downgraded from ‘Requires Improvement’ to ‘Inadequate’.

Improvements

Nursing Director, Hayley Flavell has since confirmed that the trust addressed some concerns immediately and drew up plans to correct others, including devising a system to track young patients’ location and to ensure that all staff have received appropriate training.

Ms Flavell said that, “There is now an opportunity to look widely at how we care for adults who attend our emergency department with mental health issues. We’re going to see more mental health coming into the organisation, so we need to make sure what we do isn’t just focussed on children and young people.”

Chief Executive at the trust, Louise Barnett agreed that the inspection had been an opportunity to improve, but said, “It absolutely shouldn’t take an inspection with a series of conditions and warning notices,” to provoke it.

The CQC continues to monitor the trust closely to ensure that patient safety improves and has confirmed that they will return to check that sufficient action has been taken.

The implications of the COVID-19 pandemic has created a surge in mental health problems amongst children and young people. It is therefore vital, now more than ever, that young patients are able to access the help and support they need. 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 mental health claims and if you have concerns about the care you have received, our team is happy to discuss the matter with you and guide you through the process sensitively.

Life in the Court of Protection Department

Before joining Lanyon Bowdler I was a legal secretary in a small local firm and I was mostly based in the firm’s conveyancing department. I did a bit of everything though! I franked the post, I did dictations, and I filled in AP1 forms. Due to the small nature of the firm, I had a little taste of family law, conveyancing, and wills and probate, to name a few. When COVID-19 struck, the firm for whom I worked was affected financially and I was informed that my contract would be brought to an end. This taste of many areas of practice helped me form a more clear understanding of the kind of areas in which I would like to find myself working.

What Did I Know Before Starting in the Court of Protection Department at Lanyon Bowdler?

Practically nothing! The most I had learnt at university was during a discussion regarding the Mental Capacity Act in terms of establishing a defendant’s mental capacity in criminal law in my first year. I didn’t know what a deputy was or what their job was on day-to-day basis. I didn’t know how to become one and I didn’t know what important work they do and how important it is to many people’s lives.

What Preconceptions Did I Have Before Applying for the Role?

I believed that the bulk of the work would be surrounding LPAs and EPAs. Now, in practice, my role is so much more client-facing than I realised.

I am mainly responsible for the financial side of the deputyship order we have in place for some of our clients. I spend most of my day paying outstanding invoices and ensure the clients have received reimbursements for bills and invoices. This means that I am in close contact with a lot of our key clients on a daily basis. I’ve managed to get to know them on a deeper level so much more quickly than I expected. I also make phone calls on behalf of the deputies, whether that’s speaking to the case managers for the individual clients and ordering medical aids and equipment or speaking to utility companies and local councils. I take notes in meetings and draft attendance notes so that information discussed in meetings is correctly logged for future reference.

I’ve been exposed to so many aspects of the work the Court of Protection does and I am extremely grateful. The firm really fosters a mentality of making sure its employees are well trained and I was recently given the opportunity to take part in an online webinar introducing the key work of the Court of Protection. This was invaluable and helped me understand more of the work we do on a day-to-day basis.

What Does My Role Involve?

I did not realise how much I would get out of my job each day. Whether it’s a call from a client I’ve just helped with placing an order for aids and equipment, or whether it’s an email from a client who wanted to say thank you for helping them change their utilities over when they’ve moved. The work goes beyond the client; it affects and helps their families, especially when most of them are still going through an incredibly difficult time. Hearing in multi-disciplinary team meetings that the client has progressed, in the short timescale that we have been involved, is incredible and gives me great job satisfaction to know that I’m a small part of the big change in their lives.

The Court of Protection team itself has been amazing. From words of encouragement from the team I see daily when I didn’t know what I was doing in those first weeks to the emails and phone calls when you need a laugh after a trying moment with colleagues based outside the office. The team has welcomed me with open arms. As has the whole company. I didn’t expect to feel so at home within a mere couple of weeks. I thought that the current COVID-19 restrictions, with many employees working from home, would affect how I felt with my place here at Lanyon Bowdler. This has definitely not been the case! I couldn’t imagine a better start to my first three months here at Lanyon Bowdler.

Trench Déjà Vu

A few years ago, I released a blog having been contacted by a client who was adamant he was not the person who had allegedly been caught speeding at Trench Lock. Fortunately he had dash cam footage fitted in his vehicle that was able to support his assertion and completely exonerate him of any wrongdoing. Our expert confirmed it was, in fact, the person overtaking him who was at fault of speeding.

Here is the original link to that article together with the dash cam footage.

The incident was also picked up by the Shropshire Star and reported on.

West Mercia Police Camera Ticket Office suggested it was down to human error at the time.

However, in the past 10 days, I have now had four separate unconnected individuals contact me stating they believe they have been issued with ‘rogue' speeding tickets in the same location and they are now seeking my assistance in challenging the allegations before the court.

As locals with knowledge of the area, they always drive cautiously when negotiating the area and consequently believe that something must be wrong with the camera or the range it covers.

Is this something that has happened to you or a family member/friend? Did you just pay up and take the points as the easier option? For a free initial no obligation discussion, please contact me.

The NHS

During the COVID-19 pandemic, our NHS has fondly become a national treasure. We have supported and clapped our wonderful key workers and been grateful for their incredible and tireless work. The thought of suing this overstretched and underfunded service that is available to all could, to some, seem like a dreadful thing to do. But what if you have been affected by a failure of the NHS that has left you or a family member with devastating and life-changing consequences?

What Is Clinical Negligence?

All medical professionals, whether in the NHS or private sector, owe a duty of care to their patients. If the care delivered falls below a reasonable standard and this causes harm, injury, or death, then the medical professional is negligent in the eyes of the law.

Can I Get Compensation?

NHS Resolution is the legal arm of the NHS and recognises that things can “go wrong” and when that happens, those involved should be properly informed and compensation should be fairly paid.

While financial compensation cannot undo damage caused to a patient or bring back a loved one who has died because of clinical negligence, it can help to ease future financial burdens. For the child who now has additional care needs, compensation can help to give them the care and the quality of life that they and the family deserve. Our expert clinical negligence team has recently secured compensation of over £26 million for one client.

How Can I Make Sure This Does Not Happen to Someone Else?

We find that one overriding theme is that people who have suffered from clinical negligence want to make sure that the same thing does not happen to someone else. The only way that mistakes can be learned from, is if they are fully investigated so that improvements to practice can be made. NHS Resolution is also keen that the NHS learns from mistakes to prevent reoccurrence.

Here at Lanyon Bowdler, we are passionate about helping to bring about change to improve healthcare services to make them safer for all. If you think that you or a member of your family may have been affected by clinical negligence, then get in touch with our specialist clinical negligence team.

Delays in Diagnosis of Bowel Cancer

This blog is written by Katie Little in our clinical negligence department.

It is a subject that many find embarrassing and would rather not talk about, however bowel cancer is the fourth most common cancer and the second biggest killer in the UK and it can affect anybody. April 2021 is Bowel Cancer Awareness Month and it is important that you are aware of the signs and symptoms and when you need to take action. If the disease is diagnosed in the early stages, prognosis is normally good but as time passes, the prospects of recovery diminish significantly.

Symptoms of Bowel Cancer

The main symptoms of bowel cancer to look out for are:

  • Blood in your poo
  • A change in your bowel habit (i.e. going to the toilet more or less often than usual)
  • Lower tummy pain, bloating or discomfort

#NoButts Campaign lead by Deborah James, 39 year old with incurable bowel cancer

If you experience any of the above it is important to visit your GP as soon as possible. They should take details of your symptoms, general health and family history. They may also carry out an examination. If the GP is concerned, you will be referred to a specialist.

However, here at Lanyon Bowdler, we are aware that sometimes things don’t go to plan and this can have a devastating outcome if it results in a delayed diagnosis. If you attended an appointment with your GP presenting with any of the symptoms above and they failed to refer you to a specialist for further investigations (or were delayed in doing so), they did not carry out the correct testing or screening, or if they misdiagnosed you with irritable bowel syndrome (IBS) or colitis (for example) then you may have a claim for the harm suffered as a result.

Remember, early detection is key. Be aware of the symptoms and note that the NHS also offers a bowel screening system to all of those aged between 60 and 74. Every two years you will be sent a home test kit which simply involves collecting a small sample of poo to send for testing. If you are eligible for a home test kit, take up this offer.

The below links provide helpful information and support if you or somebody you know has been impacted by bowel cancer:

For more information and advice, please contact a member of our clinical negligence team.

Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020

On 04 May 2021 the government’s Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 will come into force, giving individuals with problem debt legal protections from their creditors.

What Is a Breathing Space?

A debt adviser authorised by the FCA can offer an individual breathing space on problem debts. Under the new regulations, there are two types of breathing space.

  • A standard breathing space will pause all action to recover the debts for up to 60 days with a review date set at around day 23.
  • A mental health crisis breathing space will pause action to recover the debt for the duration of the individuals’ crisis treatment, plus an additional 30 days. An authorised mental health practitioner will provide evidence to a debt adviser showing that the individual is receiving treatment.

What Does This Mean for Creditors?

The new regulations do offer further support to debtors; however, the debtor is not absolved of liability for the debt and they will eventually be required to pay. While there is a pause on action to recover the debt, it is not a repayment holiday. If the debtor is already making payments under an agreement, they are advised to continue to make those payments. The debt adviser will also check to see if there is not a better course of action available to the debtor, this includes selling assets that are readily available, entry into a DRO, or entry into an IVA.

The insolvency service will send out the breathing space notifications to creditors and maintain its register of persons who have entered a breathing space within the last 15 months. Notifications will be sent electronically, or by post. It is important that any notification received is acted on upon receipt of the notification. Once received you must apply the following protections:

  • Identify the individuals’ debts and inform the debt adviser of any that have not been included on the notification.
  • Stop all interest and charges on the debt for the duration of the breathing space.
  • Stop any recovery efforts or enforcement actions in relation to the debt.
  • Cease communications with the debtor, including communications from your solicitors. (You can write to the debtor to let them know that the interest on the debt has been stopped for the duration of the breathing space, but this is not required.)
  • If you have issued proceedings, you must write to the courts to inform them that you have received a breathing space notification

If these protections are not put into place or are broken, a debtor can make a claim for costs associated with defending a claim made during the moratorium.

Can a Creditor Challenge the Moratorium

A debtor that has cash readily available to pay the debt will not be permitted to enter into a breathing space period. If a creditor can prove the debtor does have cash available to pay their debt, they have 20 days to appeal the moratorium, however evidence of this will need to be provided to the debt adviser. If the debt adviser does not make a cancellation of the moratorium after receiving the evidence, an application to review the moratorium can be made to the county court.

It is vital that the new regulations be incorporated into the processes and procedures of any business that recovers debts from individuals and sole traders before 04 May 2021.

For further information about our debt recovery services, please contact our debt recovery team.

Misreporting of Cervical Smears & Delayed Diagnosis of Cervical Cancer

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

What is a Smear Test?

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

Reporting Errors

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

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

Should I Be Worried?

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

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

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

Using Restrictive Covenants to Protect Your Business

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

How Do Restrictive Covenants Benefit Employers?

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

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

Types of Restrictive Covenants

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

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

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

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

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

The Importance of Carefully Drafted Restrictive Covenants

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

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

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

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

The Importance of Incorporation

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

It is common for employers to:-

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

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

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

Strategy

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

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

E’ is for Easter and for Use Class E

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Losing Capacity Doesn’t Have to Mean Losing Control

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

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

What is an LPA?

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

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

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

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

  • property and financial affairs; and

  • health and welfare.

Property and Financial Affairs LPA

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

  • paying bills;

  • buying or selling property;

  • collecting benefits or a pension; and

  • managing bank accounts.

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

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

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

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

Health and Welfare LPA

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

  • where you live;

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

  • medical care; and

  • moving into a care home.

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

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

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

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

Do I really need one?

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

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

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

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

What Can Lanyon Bowdler Do to Help?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Further implications for Uber

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

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

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

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

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