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Liberty Protection Safeguards – What They Do, What They Will Change, and When

Where care arrangements involve “continuous supervision and control” of a person, and they are not free to leave their care setting, they are said to be deprived of their liberty.

There are occasions where, due to disability, injury or condition, a person may lack the mental capacity to consent to these arrangements. Where this is the case, the person’s Local Authority is empowered to authorise arrangements that deprive the person of their liberty. This will ensure the person continues to receive the care or treatment that is deemed to be in their best interests.

This authorisation is currently done through the Deprivation of Liberty Safeguards (DOLS). However, due to criticisms from the Law Commission that the DOLS are “overly technical and legalised” and are “not meaningful for disabled people and their families or carers”, accompanied by an increase in referrals, DOLS are set to be replaced by the Liberty Protection Safeguards (LPS). Although the aims of DOLS and LPS are, at their core, very similar, it is hoped that the LPS will be a better fit for the greater volume of applications now being received regarding the care arrangements for those who lack capacity.

Similarities and differences between DOLS and LPS

It is the Government’s intention that the LPS will create a simplified and accessible framework to ensure the authorisation for care plans operates effectively, whilst still placing the person who lacks capacity at the centre of decision-making and respecting their rights, wishes and feelings expressed. The LPS will, however, be more explicit about the requirement to put the person who lacks capacity at the fore and involve them in the process.

A key difference is that the LPS will also apply to 16-17 year olds, whereas DOLS only apply to persons over 18. Currently, court authorisation is required where measures are proposed to restrict the liberty of a child.

Under DOLS, the Local Authority have to authorise arrangements for a person who lacks capacity, whereas, under the LPS, measures can be approved by a “Responsible Body”, which encompasses the NHS organisations, the Clinical Commissioning Group, and the Local Authority the person is under.

The test for whether a person is being deprived of their liberty under DOLS has been defined by court rulings as comprising of two questions:

1. Is the person subject to continuous supervision and control?
2. Is the person free to leave?

For a person to be deprived of their liberty the following conditions must be met; that the person is suffering from a recognised mental disorder, they do not have capacity to decide on the proposed arrangements for themselves, and that the proposed restrictions would be in the person’s best interests.

Under the LPS, three assessments will be required for arrangements that restrict liberty to be authorised. Firstly, a capacity assessment to determine whether the person is able to make decisions for themselves about the arrangements is needed. Secondly, the person must be medically assessed to establish whether they have a mental disorder. Thirdly, the arrangements proposed will be examined to establish that they are necessary to prevent harm to the person and proportionate to the likelihood and seriousness of the harm (the necessary and proportionate assessment).

Should the person, or their family or carers, wish to challenge a plan of care made on the basis that it is excessive or otherwise not suitable for the person, they are able to do this through the Court of Protection under the DOLS and LPS.

When will this be?

Introduced by the Mental Capacity (Amendment) Act 2019, the LPS was originally intended to come into force in April 2022. The Department of Health and Social Care confirmed that this date could not be met and the implementation of the LPS would have to be delayed. At present, no new date for the LPS coming into force has been set. The Department of Health and Social Care have commented that the “LPS are a complicated set of reforms” and that the government will need time to carefully consider consultations “before making final decisions about the design of the LPS and plans for implementation”.

We at Lanyon Bowdler understand the challenges involved with looking after a loved one who lacks capacity. If you have concerns about a person in your life who lacks, or may lack, capacity please contact our knowledgeable and friendly Court of Protection Team to discuss the issues you are facing and for advice on a way forward.

Further reading:

When a person lacks capacity and best interests decisions: https://www.lblaw.co.uk/blog/what-is-a-best-interests-decision-and-how-are-they-made-for-people-who-lack-capacity

Liberty protection safeguards – what they are: https://www.gov.uk/government/publications/liberty-protection-safeguards-factsheets/liberty-protection-safeguards-what-they-are

Mind: https://www.mind.org.uk/news-campaigns/legal-news/legal-newsletter-june-2019/royal-assent-for-the-liberty-protection-safeguards/

What Goes Up Must Come Down: The Reality of Trampolining Incidents

Since Trampoline Gymnastics became an Olympic sport in 2000, it has become one of the most popular sports for members of the public to participate in. However, as with other adventurous sports, participants are always at risk of suffering an injury, or fatality in some cases. You may have seen the recent tragic case of a 37 year old man from Stockton-on-Tees who died as a result of his injuries, following an accident on a garden trampoline. The details of this accident can be viewed here.

What happens if an injury was caused as a result of another person’s carelessness, despite the participant themselves taking care?

Trampolines at home

Each year, there are hundreds of injuries sustained from the use of a home trampoline. In fact, of all garden play equipment, trampolines have caused the highest number of accidents (reportedly trampolining is to blame for half of all activity-related A&E admissions in under-14s; Independent UK).

Although the majority of such injuries can be sustained through no fault of any party, there are occasions where the manufacturer of the trampoline, or owner of the trampoline, may be liable for your injuries.

For example, the homeowner may not have provided sufficient supervision or safely installed the equipment, therefore causing negligence in their care towards the injured party, as the injury was sustained at their property. Alternatively, if the trampoline equipment or parts were faulty, it would be the trampoline manufacturer that has been negligent in the production and sale of the trampoline.

If either the homeowner or the manufacturer have been negligent in their duty of care to the injured party it may be possible to make a claim against them.

Trampoline parks

We have seen a rise in the popularity of garden trampolines and also trampoline or adventure parks. Although the majority of those taking part leave such facilities with enjoyable memories, others can be left with life changing injuries as a result of the establishment’s carelessness.

There are currently more than 150 trampoline parks in the UK, and it was reported that, in 2017 alone, 1,200 ambulances were called following injuries sustained at such parks.

Following an increase of A&E admissions of individuals visiting a trampoline park, the Publicly Accessible Specification (PAS) was established by members of the International Association of Trampoline Parks UK, British Standards and The Royal Society for the Prevention of Accidents (RSoPA). The PAS guidelines were produced to assist trampoline parks to identify key risks with the equipment and operation of the trampolines, with the aim of establishing an effective approach to managing the risk of injury. From August 2017, all UK parks had to demonstrate a compliance to the PAS in order to operate.

Despite such guidelines being put in place, incidents of negligence, which result in the injury of the attendees, are continuing.

Many people believe a right to claim compensation for their injuries no longer exists once a waiver has been signed, however, this is not the case as the parks owe everyone who participates a duty of care. It is the responsibility of the park owner’s or the operator to ensure all safety and protection is provided; if the trampoline park operators have been negligent in some way, you may be entitled to claim compensation for the injuries you have sustained.

Negligence by the owners of the organisation can arise in various ways, causing injury, such as faulty equipment; lack of supervision; wrongly performing a trick, such as a flip or somersault, without having proper training, warning or induction; insufficient instructions provided by the park and its employees; or insufficient padding / safety equipment.

Injuries likely to be sustained

There are many injuries that can be sustained as a result of the negligence of a trampoline park operator or through faulty equipment, in particular:

  • Leg injuries;
  • Back injuries;
  • Arm injuries;
  • Head and neck injuries; and
  • Face injuries.

Such injuries can vary in severity, ranging between sprains and pulled muscles to spinal damage and brain injuries.

To successfully bring a claim for compensation you would have to show you have suffered an injury following an accident, caused or contributed to by someone’s negligence, and that you were owed a duty of care.

At Lanyon Bowdler we understand and appreciate client’s concerns when an injury is sustained through the negligence of others. For more information, please contact a member of our Personal Injury Team who will be happy to discuss the events you have experienced and guide you through the process.

Sources

https://www.mirror.co.uk/news/uk-news/girlfriend-man-killed-freak-trampoline-27887809

https://www.independent.co.uk/news/health/trampoline-injuries-a-and-e-study-b2100526.html

https://www.rospa.com/play-safety/advice/trampolines

Automated Vehicles, Friend or Foe?

No seriously, the future is closer than you think!

Automatic self-driving cars are slowly increasing in numbers; there may be a day when we live in a world where cars which drive themselves will become the norm. However, questions like ‘how might this influence the future of civil liability?’ are being considered.

The Law Commission of England and Wales and the Scottish Law Commission released their final joint report on automated vehicles in January 2022. The report, 'Automated Vehicles', spans issues related to the safe and responsible introduction of automated vehicles (AVs) in the UK (see full report here).

There are proposals to remove blame from the human in the car. The human will be labelled as a 'user in charge' (UIC). Once the self-driving feature is engaged on an automatic car, the driver becomes a 'user in charge' who has immunity from driving-related offences. UIC immunity from any criminal offence or civil penalty is central to the report's recommendations. The Commissions suggest the Automated Driving System (ADS) should not be capable of operating outside its intended domain, and the UIC would not be immune if they have overridden or altered the system to engage when it is not designed to, or if they deliberately cause the ADS to malfunction.

You, as the UIC would still be responsible for non-dynamic tasks such as insurance, maintenance, parking, reporting accidents and ensuring children wear seatbelts.(1)

Definition of ‘self-driving’?

The Commissions' report has proposed that a 'self-driving' vehicle is responsible for the dynamic driving task, such as how the car drives and operates.

Under the Automated and Electric Vehicles Act 2018 (AEVA 2018) (2) it defines a vehicle as 'driving itself' (3) if it is ‘operating in a mode in which it is not being controlled, and does not need to be monitored by an individual' (4). Vehicle users may not be expected to 'drive' the car or 'monitor' it, but they are expected to respond promptly and effectively to transition demands.

In case of emergency, the 'transition demand' system in the vehicle would alert the UIC with multisensory signals, giving them enough time to take back control and regain situational awareness. Ideally this would happen within 10 seconds, although this period remains under review. Once the transition demand is issued and accepted, the 'handover' is completed from vehicle to UIC, the UIC becomes the 'driver' who would then be subject to the usual responsibilities of a human driver, measured against a reasonable and competent standard. Mitigation against risk of injury or damage if the UIC fails to take over when requested would need to be assessed by the regulatory body, but in a worst-case scenario, the vehicle should be able to come to a 'controlled stop' in lane.

What could change?

To account for the deployment of this new technology, the Highway Code and accompanying legal framework will need to be amended to determine the relevance of certain rules. For example, the rules regarding stopping distances and time, the computer is programmed to always take these into account. Further, the need for mirror-signal-manoeuvre to be drilled into every student driver when cars of the future will do this for you. It is thought that most of the Highway Code may become redundant, as cars will be able to read road signs and perform actions that humans are taught to do. The Commission has proposed to place responsibilities with the manufacturers, users in charge and licenced fleet operators (5) .

What are people’s views?

There are still differing opinions surrounding autonomous vehicles. Many welcome the idea, as motoring technology has already come a long way in assisting drivers to avoid accidents with the introduction of cameras, blind spot indicators, driver alerts, lane assist, collision assist etc.

There are still several others who remain against driverless cars and would prefer to trust their safety to human drivers rather than new technology. It will take some time for people to adapt, but AVs are definitely a positive step forward in driver safety. Although, with society advancing in this way it is likely to attract cyber criminals, therefore the security of such vehicles is paramount.

If you have been accused of committing a motoring offence, or have been involved in a road traffic accident, we at Lanyon Bowdler can assist with our Personal Injury Department.

  1. Highway code https://www.gov.uk/child-car-seats-the-rules

  2. https://www.legislation.gov.uk/ukpga/2018/18/contents/enacted

  3. Section 8(1) of the AEVA 2018 https://www.legislation.gov.uk/ukpga/2018/18/section/8/enacted

  4. Section 8(1) of the AEVA 2018 https://www.legislation.gov.uk/ukpga/2018/18/section/8/enacted

  5. BBC News Website: https://www.bbc.co.uk/news/technology-60126014

Pancreatic Cancer Awareness Month

Every year in the UK, around 10,500 patients receive a diagnosis of pancreatic cancer. This equates to 29 new cases every day. Sadly, behind the diagnosis lie terrifying statistics. Only 25.4% of people diagnosed with pancreatic cancer in England survive the disease for one year or more, and only 7.3% of people survive for five years or more. It has the lowest survival rate of all 22 common cancers.

Pancreatic cancer survival has not shown much improvement in the last 40 years. For example, in the 1970s, 1% of people diagnosed with pancreatic cancer survived their disease beyond ten years. In 2022, the survival rate of ten years or more remains at 1%.

These statistics have led to highly controversial campaigns such as ‘I wish I had another cancer’, whereby pancreatic cancer patients have shared their stories about wishing they were battling a cancer with better survival rate statistics.

Sadly, most people diagnosed with pancreatic cancer are diagnosed at a late stage and, therefore, surgery is not an option. One of the reasons for this is because the symptoms of pancreatic cancer are often not specific and may come and go initially. In addition, symptoms can also be very similar to other conditions, such as gallstones, pancreatitis, stomach ulcers and IBS.

This year, 17 November 2022 is Pancreatic Cancer Awareness day. The aim is to raise awareness of the early signs and symptoms of pancreatic cancer in order to save lives.

Whilst everyone is different, common symptoms include:

  • Indigestion
  • Tummy or back pain
  • Changes to poo
  • Unexplained weight loss or a loss of appetite
  • Jaundice (yellowing of the skin or eyes and itchy skin)

Other symptoms might include:

  • Recently diagnosed diabetes
  • Problems digesting food
  • Feeling or being sick
  • Blood clots
  • Fatigue

Tragically, many patient’s stories involve a history of repeated visits to their GP with symptoms which have gone misdiagnosed for years. Generating awareness is therefore critical to supporting early diagnosis and improving patient’s outcomes.

Delays in diagnosis of pancreatic cancer can be devastating and we would encourage everyone who reads this blog to take action if you are suffering with any of the above symptoms. Here at Lanyon Bowdler, we have profound sympathy for all individuals and families impacted by pancreatic cancer. If you have any concerns in relation to the treatment that you have received, please contact us.

First Registration Benefits

I am an Associate CILEX and I specialise in conveyancing.

I would confidently say that a swift conclusion is at the heart of all successful conveyancing matters. Delays can result in so many frustrations, causing unwanted confusion and upset among buyers and sellers.

In a society where everything is instantly to hand the property transaction can be seen as a long winded old fashioned process. To ensure there is a prompt conclusion to a matter the Legal Title must be clear and precise for any lawyer to allow the matter to proceed with minimum enquiries raised.

One of the main reasons to register the Title to any property in England and Wales, is to ensure that all deeds and documents are held on a central electronic register and therefore easily accessible.

There can be many issues encountered in dealing with unregistered land, such as first finding where the unregistered Deeds are located. If all the Deeds are not present the lawyer will have the task of locating the missing documents, this can sometimes lead to delays as searching for the Deeds is not a straight forward or simple step. The benefit of the land being registered, as previously stated, is having access to an electronic version, so the lawyer can simply download an electronic version speeding up the process as all the information is instantly available.

We have touched on the point of missing Deeds and this can be extremely problematic. Without the Deeds being available, there could be an issue proving the seller has the legal ownership of the land they are intending to sell (meaning the seller could potentially be unable to sell the property). In this instance an application would need to be made to Land Registry which could result in delay. There is a chance that the application made on your behalf may not be successful and Title Absolute may not be granted.

Title Absolute is the best form of Title you can acquire and most mortgage lenders will require this before they are willing to lend. If you are unable to provide good Title to the property this may result in you obtaining Possessory Title only. This would mean you would have to upgrade the Title to the land in 12 years from the date you possessed the property to obtain Title Absolute. If this is the case you could potentially be left with an un-mortgagable property, therefore limiting the type of buyers who would be eligible to proceed.

Here is a short list of benefits for First Registration:-

  • Security – unregistered land is at higher risk of fraud. Fraudsters can assume your identity and attempt to sell, or mortgage, your property without your knowledge. Registering your property helps against fraud, adverse possession or potential squatter’s rights.
  • Evidence of ownership – this makes it easier to buy and sell a registered property, as it’s held on an electronic register which is available to everyone.
  • Reduced future costs – there is a 25% reduction in voluntary registrations. Voluntary is when you chose to register the property rather than when you sell or chose to take out a mortgage on the property.

I would strongly advise that as a property owner you should check the status of your deeds to see whether the property is registered or unregistered prior to considering marketing it for sale.

All Vroom and Gloom? The Current Law on Public and Private E-Scooters in the UK

Electronic scooters, or “e-scooters”, are finding an increased popularity in modern society today; you may have seen them in the news, or seen people using them as short-distance transport in various cities around the country, but did you ever stop to consider what the rules on them might be? Unlike electric bikes, or “e-bikes” (you may be spotting a pattern here), which have been legal in the UK for some 40 years, e-scooters are such a new phenomenon that the rules which govern them are not quite clear. So in the absence of further direction, where do we currently stand?

It should be noted that different rules apply to privately-owned e-scooters and public e-scooters designed for use as part of Government-backed transport schemes. Many metropolitan areas such as London, Birmingham and Manchester have engaged in an e-scooter pilot scheme with the support of the Government. These schemes are outsourced to companies who allow you to rent a public e-scooter to travel around on; you can “unlock” the e-scooter through an app on your mobile phone and ride around in a designated, geo-locked area. The cost of the third party insurance is incorporated into the cost of the rental* so as the user of the vehicle you are legally protected if an incident occurs. The same principle applies to being the driver of a car on the road, it is a legal requirement to have valid insurance to protect both yourself and those around you in the event of a collision.

The rules relating to privately-owned e-scooters also apply to many other e-powered devices including e-skateboards, Segways etc. In the absence of any specific legislation, e-scooters are governed by the Road Traffic Act 1988 (RTA 1988) and are therefore considered to fall within the definition of “any motor vehicle intended for use on the road”. As with a car or a motorbike, any privately-owned e-scooter would need to meet road vehicle requirements including licence and registration, third party insurance etc. to be used on a public road. If, for example, you fail to obtain sufficient vehicle insurance prior to using a private e-scooter on a public road (and many insurance companies will refuse to provide insurance due to these concerns) then you may be found to be committing a criminal action and prosecuted for driving without insurance or driving without a valid licence.

Similarly, as e-scooters fall within the definition of a motor vehicle under the RTA 1988, they are also prohibited from being ridden on public pavements. This is something you may want to be aware of prior to purchasing a very expensive private e-scooter, as if you are prohibited from riding it on public roads or pavements, then whizzing around on private land is currently your only legal option!

So where does this leave you if an injury arises from an e-scooter related accident? Again it depends on public v private e-scooters and whether it is you or the other party who are at fault for the collision:

If you suffer an injury

  • Publicly-Owned e-scooter (with valid insurance) If you suffer an injury caused by someone riding a publicly-owned e-scooter rented through one of the Government-supported schemes, then the third party insurance would be valid and you could proceed with bringing a claim for compensation against the rider and the insurer.
  • Privately-Owned e-scooter (without valid insurance) If you suffer an injury caused by a secondary party whilst riding a privately-owned e-scooter on public roads, you may still be able to bring a personal injury claim but the defendant, or their insurer, are likely to argue that you were acting illegally or contributed to your own misfortune, and this would likely have a detrimental impact on your case. Additionally, the police may bring proceedings against you for the reasons set out above.

If you cause an injury

  • Publicly-Owned e-scooter (with valid insurance) If you cause an injury to someone whilst riding a publicly-owned e-scooter rented through one of the Government-supported schemes, then the third party insurance would be valid and the injured party would be able to bring a claim for compensation against you as the rider and your insurer.
  • Privately-Owned e-scooter (without valid insurance) If you cause an injury to someone whilst riding a privately-owned e-scooter on public roads then the injured party would be able to bring a claim for compensation against you as the rider. Since there would be no valid motor insurance in place, the claim would likely proceed with the Motor Insurers’ Bureau being brought in as a party in place of the insurer. Again, the police may bring proceedings against you for the reasons set out above.

As with many new areas of law, the legal position is constantly changing and until there is a set authority on the matter the above summary is the best understanding we have. As for the future of e-scooter law, reference was made to them in the 2022 Queen’s Speech as part of the Government’s proposed ‘Transport Bill’. Grant Shapps MP, the then Transport Minister, had recommended legalising and regulating vehicles such as e-scooters as part of a wider push towards more renewable forms of transport, however, that was a different Government at a different time. We await further guidance on this issue but until then, scoot safely and legally!

*well it should be, always best to check your T&C’s with the rental provider prior to setting off!

What is Stamp Duty and How is it Changing?

What does Kwasi Kwarteng’s stamp duty cut mean for homebuyers in England?

Stamp Duty (SDLT) is a tax that is charged when you purchase a property or land over a certain price in England and Northern Ireland.

The recent cut to stamp duty tax announced on 23 September 2022 was part of a wider “mini budget” announced by the new Chancellor, Kwasi Kwarteng. The government announced this cut as what they describe as: part of their commitment to an economy based on high growth and low tax, to help people keep more of the money they earn and drive business investment as a result. The cut in stamp duty was one of Liz Truss’ promises when she ran to be the new leader of the Conservative Party.

To help achieve these aims, the government cut Stamp Duty Land Tax for those purchasing a residential property, by doubling the level at which people begin paying this from £125,000 to £250,000.

In order to assist first-time buyers the government has also increased the level at which first-time buyers start to pay tax, from £300,000 to £425,000. They are also allowing first-time buyers to access the relief when they buy a property costing less than £625,000, rather than the previous £500,000 limit. The government has released these measures as part of their commitment to helping first-time buyers get onto the property ladder.

Government figures suggest these new measures will, on average, reduce stamp duty liability across the board for all movers by up to £2,500, with first-time buyers able to access up to £8,750 in relief.

The government hope these measures will boost the property market, in turn helping businesses expand and help fuel the wider economy’s growth.

What are the potential savings?

Below is the government’s table of potential savings:

The new standard Stamp Duty Land Tax rates from 23 September 2022 are now as follows:

What about second homes?

Those buying second homes or buy-to-let properties will continue to pay extra tax. In England and Northern Ireland this is known as a surcharge which is charged at a rate of 3% on top of the normal tax bands, which are shown above.

Expert opinions on these changes

To date the reaction from the property experts has been mixed, some saying it will ease the cost pressures whilst others fear this will cause house prices to spike.

Since the announcement of the “mini budget” it has prompted financial market volatility, and many lenders have been struggling to accurately price their products after the pound fell to a new low. This sent the interest rate to a 12 year high, brokers predicted this to be the start of a major shift in the UK mortgage market. It was announced that rates have increased by four times, the fastest rate on record since the announcement on the “mini-budget” as a whole, with rates now above 6% (based on an average five year fixed mortgage deal), compared to 2.35% a year ago.

There is considerable market un-certainty at the moment and it will be interesting to see how the property market adapts and adjusts to the current financial market conditions.

You can listen here to our podcast - common questions asked when buying a property. In this episode, Cassie and Emma discuss the common questions they're asked by people looking to buy a property, along with the steps they take to secure a smooth transaction. Please note the SDLT thresholds mentioned in this podcast have since changed.

If you have any questions in terms of your stamp duty liability then please do not hesitate to contact us.

This blog only applies to properties in England and Northern Ireland. Wales and Scotland is subject to Land and Buildings Transaction Tax which has its own set of rules and rates.

Legal Aid Funding for Representation at Inquests

On 3 October 2022, the Ministry of Justice and Legal Aid Agency published guidance for bereaved families on obtaining legal aid funding for legal representation at an inquest into the death of a family member. This can be found on the gov.uk website. The guide also discusses when an inquest is needed, what an inquest seeks to answer, accessing Legal Help to prepare for an inquest, having a legal representative at an inquest hearing and other sources of support at inquests.

A Coroner’s inquest into the death of a family member is an important process that is intended to find out answers to questions including who was the deceased person, where and when they died, and, most importantly, how they died. An inquest is a fact-finding process designed to enable the Coroner to answer the above questions. The Parties to an inquest are called Interested Persons and they assist the Coroner in carrying out their duties.

Funding for representation at an inquest is not generally available because an inquest is a relatively informal inquisitorial process, rather than an adversarial one. The role of the coroner is to question witnesses and to actively elicit explanations as to how the deceased came by their death. An inquest is not a trial. There are no defendants, only Interested Persons, and witnesses are not expected to present legal arguments

There are two types of legal aid funding available relating to inquests:

  1. Legal Help – legal advice and assistance when preparing for an inquest

  2. Exceptional Case Funding – legal representation at an inquest

Legal Help may be available from a solicitor to help a close family member of the deceased prepare for an inquest, but it does not cover the cost of legal representation at the inquest itself. The person applying for Legal Help usually has to meet certain financial criteria to qualify.

Exceptional Case Funding, if appropriate, can cover the cost of legal representation at an inquest. However, this type of funding is only available if specific criteria are met:

  1. If Article 2 of the European Convention of Human Rights is triggered, which is where there is an allegation that the State has breached the deceased’s “right to life” for example, where the person’s death has been directly caused or contributed to by an agent of the State (e.g. police shootings; all violent or non-natural deaths and suicides of persons detained in police or prison custody; and all violent or non-natural deaths and suicides of persons detained in mental hospitals. In these cases the state or public body will often have legal representation.

  2. When the inquest is likely to lead to significant benefits for the wider public. For example, in circumstances where understanding the facts about a death may help to reduce future deaths.

A legal representative can apply for Exceptional Case Funding on behalf of the applicant. If the LAA considers that the criteria are met, funding can be granted irrespective of the applicant’s financial status.

It remains the case that legal aid funding relating to inquests remains very limited and is often unavailable to family members who, for good reasons, wish to have legal assistance in preparing for an inquest and legal representation at the inquest itself.

Lanyon Bowdler Supports Baby Loss Awareness Week

Every day, on average, 13 babies die in the UK – some are born sleeping; others die from natural causes; whilst some die from medical negligence.

However, they are not just statistics – they are loved and missed.

This year is the 20th year of Baby Loss Awareness Week, which is an opportunity for those who have been touched by pregnancy and baby loss, to come together in a safe and supportive space to share their experiences and recognise that they are not alone.

Each year the week ends with a Wave of Light at 7pm on 15 October, a moment where candles are lit across the world to commemorate all of the much-loved and much-missed babies, which also allows messages of remembrance, reflection and hope to be shared. People, organisations and landmarks are also invited to turn Pink and Blue in a mark of solidarity, respect and support.

This year’s theme is “Stepping Stones” – as each parent or family find themselves on a path they never expected, the grief journey can be overwhelming. Steps are taken along that journey, large or small, some harder than others – but always with support from those who have been touched by the loss of a baby.

Lanyon Bowdler support the important work that organisations such as SANDS, Tommy’s and the Miscarriage Association, who are the UKs leading stillbirth, miscarriage and neonatal death charities, and together we have supported and continue to support those families who have been affected by baby loss. Most recently those arising from the maternity scandals at Shrewsbury and Telford NHS Trust and Nottingham Hospitals Trust.

This week, our thoughts are with all of those whose lives have been affected by baby loss, and we invite you to light a candle at 7pm on 15 October and join the Wave of Light that will mark an important global moment of remembrance.

Inflation and RPI Proposed Changes

Not usually a very interesting subject but inflation is something that we have all suddenly become quite familiar with. Inflation rates can be difficult to predict and are liable to change suddenly because of world events, as we have recently seen.

Property documents with reviews and payments are often tied to fixed dates and so will not necessarily be able to adapt quickly to changing trends. Most property documents when linking payments to inflation use an inflation index, the principal measure of inflation in the UK is the Consumer Price Index (CPI).

Another index is the Retail Prices Index (RPI) which measures the average change, month to month, of the cost of specific retail goods and services in the UK including mortgage interest payments. RPI is no longer the principal measure of inflation but remains popular in the property industry, one of the reasons being that annual RPI increases have averaged about 1% higher than CPI.

Why is this an issue?

The government confirmed previously that the UK Statistics Authority (UKSA) could implement changes to RPI after February 2030. A recent judicial review decision has confirmed this decision was lawful. UKSA want to align RPI with the CPIH which is the CPI plus housing costs (i.e. how much a householder would pay rent for an equivalent property; not mortgage payments).

If this happens it is believed that investment values and rent reviews may drop. The consequences arising from the changes will vary depending on what action is taken in 2030.

2030 is still a few years away, so why worry?

Your leases may need to be considered now if they use RPI indexation and will continue beyond 2030.

If you are a landlord, you may want to check the terms of any existing leases that you hold whose term continues from 2030 and beyond, to see if your leases allow for the substitution of an alternative index.

When agreeing heads of terms for a new lease that will remain in force during or after 2030, you should consider how any increases are to be calculated and if an index is to be used, which one? If you are the tenant, this could also impact on you, as the use of any index other than RPI or a combination of indexes, will have tax implications.

There are a lot of points to consider when entering into any contract or document, in particular a lease. Here at Lanyon Bowdler we can advise on many aspects of commercial property including commercial leases. You can contact us on 0800 652 3371 or by email: info@lblaw.co.uk.

Running The Virtual London Marathon For Charity

On Sunday 2 October 2022, a group of staff from the Personal Injury Department at Lanyon Bowdler took part in the Virtual London Marathon with the route taking us twice around Lake Vyrnwy. We were raising funds for the Robert Jones and Agnes Hunt Orthopaedic Hospital (RJAH) Orthopaedic Institute which supports research and education for patient benefit.

As well as providing life changing treatment to patients, the RJAH Hospital is a hub of scientific investigation contributing to the developing field of Orthopaedic research. A current focus of their research is the Charcot Marie Tooth (CMT) disease, which is a rare, hereditary condition that usually appears in the first 10 years of life which causes sensory and motor nerves to die leading to muscle wastage causing significant impairments including inability to talk, joint pain and deformities. Despite this disease having an enormous impact at such a young age, there is limited research making it difficult to develop treatments, and the funds the team raise should allow these investigations to continue in the future.

Here at Lanyon Bowdler, we take a very holistic approach in the Personal Injury Department by making sure our clients have highly qualified case managers, assessments and opinions from experts in the medical and other fields. We specialise in assisting with claims where individuals have suffered from spinal cord injuries, meaning that we have close regular contact with the medical professionals at the RJAH Orthopaedic Hospital.

There is no doubt that suffering a spinal injury has an enormous detrimental impact on the individuals quality of life due to facing many tough challenges on a daily basis. However well the team members had prepared for participating in the Virtual London Marathon, they inevitably faced many obstacles throughout the challenge, which enabled them to further empathise and understand the experiences and goal focused challenges of their clients.

We were all looking forward to the marathon, with a certain amount of trepidation, we had a number of training plans, lots of discussion, support and dare I say some competition within the team. It was lovely to be out running for charity again, and was a wonderful life affirming experience. I am so grateful to Debbie Alexander and the team for organising this wonderful event. My last running event was the London Landmarks Half Marathon, again raising money for the RJAH, but this time for the Horatio’s Garden project. I am now googling what will be my next one!

There is still time to donate here: https://www.justgiving.com/campaign/orthopaedicinstitute

To Gift or Not To Gift

The Office of the Public Guardian (OPG) sets outs the legal guidance for deputies (appointed by the Court of Protection) and attorneys (appointed under a property and affairs Lasting Power of Attorney) in regard to giving gifts on behalf of the person they act for. Deputies and attorneys have limited powers to make gifts on behalf of someone they are looking after, providing the value of the gifts is not unreasonable considering their financial or other assets. As a deputy or attorney, you can also apply to the court for permission to make larger or more unusual gifts.

It may also be necessary in some cases for a deputy, attorney or a family member to apply to the Court for a Statutory Will, which is a Will made on behalf of someone lacking capacity. Even as a deputy or attorney you do not have the authority to create a Will for an incapacitated person without the prior approval of the Court of Protection. The Court will consider whether the creation of a Statutory Will is in the best interests of the incapacitous person.

What is a gift?

In regard to a deputy or attorney, a gift is described as transferring the ownership of money, property or possessions from the person whose affairs they manage to another (including themselves) without full payment in return.

The General Rule about Gifts

The general rule is that a deputy or attorney should not make gifts from the person’s estate. However, there is an exception in which they may make a gift if it is to a family member, friend or acquaintance of the incapacitous person on a customary occasion, such as birthdays, Eid, Hanukkah, Diwali, Christmas or to a charity the person supported and the gift is not of an unreasonable value.

According to the guidance, any gift or transfer of a property, such as a house or land, is almost certainly outside of the deputy or attorney’s powers. To make such a gift, the deputy or attorney would have to apply for permission from the Court of Protection,

A person’s executed Will can be taken into account when making a gift, as it is a suggestion of the person’s wishes.

Does the person have mental capacity?

The Mental Capacity Act 2005 (MCA) sets out how to assess capacity, which is a process containing several stages. To have capacity to make a decision, section 3 of the MCA says the person has to be able to:

  • understand the information relevant to the decision;
  • retain that information (hold on to it in their mind);
  • weigh up or use that information; and
  • communicate their decision.

If the person has mental capacity, they should make the decision to make a gift themselves. If the person lacks capacity, the deputy or attorney must still either consult them or encourage them to participate in the decision-making.

Providing for others’ needs?

A deputy or attorney may potentially look after the needs of the person’s relatives or dependents if legally obliged to maintain them.

In the case of The Public Guardian’s Severance Applications (Rev1) [2016] EWHC COP 10 (19 June 2017), the difference between a gift and a payment to meet a person’s needs was considered. It was held that an LPA donor could legitimately require her attorney to meet her disabled daughter’s needs from her estate without seeking authority from the Court of Protection, as this was meeting a need rather than making gifts.

What happens if you make unauthorised gifts?

If a deputy or attorney makes gifts beyond their authority and without approval from the Court of Protection, the OPG has the power to investigate and may apply to the Court of Protection to have the deputy or attorney removed; suspended temporarily; be required to apply for approval of the retrospective gift or return the gift. The OPG may also refer the matter to the police and can apply to the Court of Protection for a deputy’s security bond to be called in and seek repayment personally from the deputy or attorney.

It is crucial that a person appoints people they trust to act as deputies or attorneys to manage their financial affairs when they lack capacity do so themselves.

At Lanyon Bowdler, we act as professional deputies on a number of cases and our highly experienced Court of Protection Department will be able to advise you about giving gifts on behalf of someone who lacks capacity and when and how you will need to apply to the Court. You can contact us on 01743 280280 or by email at CourtofProtection@lblaw.co.uk

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