This article provides a snapshot of the latest developments in social care reform, which will affect many individuals with a brain injury, along with their family and carers.It has long been of concern that the legal framework funding system for social care is confusing, unfair and unsustainable.

Last year, the Dilnot Commission provided a report to the government, with proposals on how to improve and simplify the system. It is clear that the current system, initially formed to meet the needs and resources of the UK in the 1950s, now requires modernisation to meet the needs of today. The urgency of such an overhaul has been highlighted by the Commission, which predicts that the population in England will include another two million people in need of care over the next 20 years.

In the Queen’s Speech of 9 May, Her Majesty announced that a draft Bill will be published to modernise adult care and support in England. Currently, care services are fragmented, with social care, primary health, community health, hospital services and housing services all working separately from one another, with no modern technology systems in place to allow information sharing between them. Any changes will inevitably affect those with a brain injury and their carers, many of whom require access to these services.

The main suggested benefits of the draft Bill would be that it:

• Places a duty on local authorities to plan their service around the needs of the local population;
• Gives more choice and control to those using social care and helps people plan for the future;
• Simplifies the system and processes to help local authorities and social workers to innovate and achieve results for people;
• Consolidates existing law into a single statute.

Calls from charities and the social care sector suggests that work needs to be done to look at how social care will be funded, particularly in light of the ageing population and the current economic climate of austerity measures.

The Queen’s Speech made clear last week that only a draft Bill will be drawn up during this Parliament and, therefore, no legislation tackling the reforms will be passed until next year at the earliest.

Lyons Davidson’s Head Injury Team specialises in head and brain injury claims on behalf of the injured party. For more information contact Sue Upton: supton@lyonsdavidson.co.uk

Brain injury does not just affect individuals: it can transform the lives of entire families, too. Emotional and behavioural changes in the person who has been injured can affect relationships and family dynamics. There may also be physical demands on the carer, while loss of income can cause added stress to the family situation.

Caring for someone with a brain injury can require a great deal of patience and sacrifice. This year’s Action for Brain Injury Week, which runs between 14 – 20 May 2012, is highlighting the issues that surround caring for someone with a brain injury, while providing practical support to those who need help.

A new workshop designed to help carers of people with brain injury better cope with the practical, financial and emotional challenges they face will be launched by Headway during Action for Brain Injury Week, with the first three courses also taking place between 14 – 20 May. More details can be found on Headway’s website.

Lyons Davidson’s Head Injury Team specialises in head and brain injury claims on behalf of the injured party. For more information on making a head or brain injury claim contact Sue Upton: supton@lyonsdavidson.co.uk

Last Wednesday (9 May) saw the Queen’s Speech at the State Opening of Parliament. The Queen announced a couple of forthcoming Bills that will be of interest to employers: the Enterprise and Regulatory Reform Bill and the Children and Families Bill.

The draft legislation has not yet been published but we do have some understanding of an outline of the scope and purpose of each Bill.

The Bills will implement the government’s proposed reforms of employment law. There will be an overhaul of the employment tribunal system, encouragement for earlier resolution of employment claims, new shared parental leave and changes to the right to request flexible working.

The Enterprise and Regulatory Reform Bill
This Bill covers several areas, but of particular interest for employers will be the provisions for encouraging early conciliation of employment disputes by requiring claimants to lodge their claim with ACAS. Also, compromise agreements will be renamed ‘settlement agreements’, making them simpler and capable of compromising all claims without a detailed list of specific claims included.

The Bill also proposes improvements to the Employment Tribunals system, by “increasing flexibility and encouraging employer compliance”. We do not yet have details of the specific proposals but expect that financial penalties for unsuccessful respondents will be introduced.

This Bill also aims to “strengthen the framework for setting directors’ pay” by “strengthening shareholder power” – a very hot topic, considering the recent ‘shareholder spring’ at Barclays.

The Children and Families Bill
This Bill also covers a range of issues, with measures for flexible parental leave of interest to employers: this will allow mothers and fathers to share caring responsibilities between them. It is also anticipated that the Bill will cover extensions to the right to request flexible working.

Lyons Davidson’s Employment Department will keep all clients informed of the development of the Bills as they progress through Parliament, ensuring that all are fully informed about the ways in which the changes may affect their business.

If you need help on this or any other aspect of employment law, contact Nick Jones on 0117 904 5912, by email: njones@lyonsdavidson.co.uk or via LinkedIn.

On Monday, 14 May, Headway published the results of their research into the position of carers. The brain injury association carried out its survey of carers of people with brain injury throughout the UK, looking in particular at the burden of caring and the quality of life that carers experience.
Headway reports some of the key outcomes of the research as follows:

• 60% of brain injury carers feel they do not receive adequate support in their caring duties;
• Just 7% of brain injury carers receive help from social workers in their caring duties;
• Only 27% of brain injury carers have received a carer’s assessment;
• Almost half (49.5%) of respondents were unaware they were entitled to a carer’s assessment, despite the legal requirement for local authorities to ensure that carers are made aware of the right to this assessment;
• Just 24% of brain injury carers are satisfied with their own health (and a worrying 8% say they are “very dissatisfied” with it);
• 18% of brain injury carers rate their quality of life as “poor” or “very poor”;
• 59% show signs of clinical depression, with 21% in the “severe” or “extremely severe” range;
• 71% of respondents have experienced deterioration in their financial situation since commencing caring duties;
• 73% of brain injury carers do not receive a carer’s allowance;
• 78% of those who do receive a carer’s allowance are still worse off financially.

The research also examined the level of burden experienced by brain injury carers. The results indicated a significant burden, which could negatively impact on health and increased levels of stress, anxiety and despression.

Headway’s survey highlights the day-to-day difficulties faced by those who care for people with brain injuries. Headway are highlighting these difficulties during Action for Brain Injury Week 2012, whose focus this year is on carers of those with brain injury.

For more information on the survey and the work Headway does for carers, visit the Headway website.

Lyons Davidson’s Head Injury Team specialises in head and brain injury claims on behalf of the injured party. For more information contact Laura Merry: lmerry@lyonsdavidson.co.uk

Lyons Davidson’s head of Environment, Health and Safety, Richard Voke, will be chairing one of the opening sessions at Sustainabilitylive! on 22 May at the NEC, Birmingham.

The three-day seminar and conference programme combines five dedicated exhibitions on:

• Energy technology;
• Renewable energy;
• Water treatment and efficiency;
• Sustainable business; and
• Environmental and land remediation, where Richard’s panel will be discussing legislation.

Andrew Wiseman, Head of Environmental Law at Stephenson Harwood, will speak on the current and future direction of contaminated land regulation. Natural England’s Senior Environmental Specialist, Samantha Lyme, will address biodiversity policy and legislation and its implications for planning on brownfield sites. Paula Whittell, Partner in Environmental Law at Berrymans Lace Mawer, will give a litigation perspective in light of the Corby asbestos case. Finally Richard will chair a question and answer session on these complex and fascinating areas of environmental law.

Sustainabilitylive! runs from Tuesday 22 to Thursday 24 May at Birmingham NEC. Richard Voke’s Environmental Law panel will begin at 10.30 on Tuesday 22 May. For more information on the event please visit the website.

For more information on environmental legislation and EHS matters in general, contact Richard Voke at: rvoke@lyonsdavidson.co.uk.

BRISTOL

Employment Law is a fast moving and ever changing area of law. We recognise that it can be a challenge for a busy business to keep pace with developments. We are therefore delighted to invite you to the next in the series of LD’s BLT (Breakfast Legal Training) on Wednesday 16 May 2012.

LD’s BLT is a relaxed breakfast event that takes place every eight weeks at our Victoria House offices in central Bristol between 8:00 and 9:15. We will appraise you of key developments in employment law and invite any feedback and questions that you might have about the impact on your business.

In addition, each meeting will feature our BLT Toolkit, a 15-minute talk designed to provide you with the tools to manage a particular issue. In our next meeting, the BLT Toolkit will focus on the issue of ‘Disciplinary Hearings – Dos and Don’ts’. We will focus on the areas that employers struggle to get right and provide you with some practical and clear guidance. Essential for HR professionals and business owners generally.

If you would like to attend please email Heather Johnston at hjohnston@lyonsdavidson.co.uk or phone on 0117 904 5933. If you would like to order pastries, fruit and  yoghurt or a bacon/sausage bap please let us know when you book your place.

Lyons Davidson’s Head Injury team are supporting Action for Brain Injury Week. The event puts the spotlight on those who care for and support someone with a brain injury.

The consequences of brain injury affects not only the individual but also has an effect on – and can change the lives of – the injured person’s family and friends. A brain injury can result in behavioural changes, which can place pressure on relationships. There is often a massive change to the family unit, with a spouse or partner becoming a carer for their partner or a child.

You can find out about Action for Brain Injury Week events around the country by looking at Headway’s website.

As part of Action for Brain Injury Week’s emphasis on highlighting issues surrounding caring for someone with a brain injury, Headway UK have conducted a survey-based study looking at the burden placed on carers’ shoulders. Headway hope to release an analysis of the results during the course of this week.

Lyons Davidson’s Head Injury team will be showing their support this the week. We will publish articles on our website and the team will be holding a Hats For Headway Day on Friday 18 May.

Lyons Davidson’s Head Injury Team specialises in all types of head and brain injury claims on behalf of the injured party. For more information on head injury claims contact Laura Merry: lmerry@lyonsdavidson.co.uk

Date:  30 May
Time: 8.30-9.45
Venue: St Martins House, Britannia Street, Leeds, LS1 2DZ

Employment Law is a fast moving and ever-changing area of law. We recognise that it can be a challenge for a busy business to keep pace with developments. We are therefore delighted to invite you to the next in the series of LD’s BLT (Breakfast Legal Training) on Wednesday 30 May 2012.

LD’s BLT is a relaxed breakfast event that takes place every eight weeks at our St Martins House offices in central Leeds between 8.30 am and 9.45 am. We will appraise you of key developments in employment law and invite any feedback and questions that you might have about the impact on your business. In addition, each meeting will feature our BLT Toolkit, a fifteen minute talk designed to provide you with the tools to manage a particular issue. In our next meeting, the BLT Toolkit will focus on the issue of ‘Managing Disciplinary Investigations’.

We will focus on the key areas that a disciplinary investigation needs to cover and provide you with some practical and clear guidance. Essential for managers who could be involved in the disciplinary process and very useful for HR professionals and business owners generally.

If you would like to attend please email: employment_leeds@lyonsdavidson.co.uk or phone us on 0113 368 6190. Please indicate whether you would like pastries/fruit & yoghurt/bacon sandwich.

There are now a variety of claims consultants and advisers available for construction industry professionals to consult with on disputes, legal or otherwise. The vast majority of these provide excellent advice and can be equally competent as practising solicitors when advising on construction claims and disputes. However, last month’s ruling by Head of the Technology and Construction Court Mr Justice Akenhead, in the matter of Walter Lilly and Co Ltd v Charles MacKay and DMW Developments Ltd, does throw up an interesting dilemma for those using claims consultants in preference to a lawyer.

The judgment handed down concerned an application for disclosure of documents by a well-known firm of claims consultants, Knowles, created for the purposes of advising Mr MacKay. The facts are relatively straightforward: Walter Lilly and Company Ltd were employed by Mr MacKay’s contractor, DMW Developments Ltd, to construct a substantial house in London. Work started in 2004 and was expected to be completed within 18-20 months but there were significant delays. The architect felt the delays were justified and believed Walter Lilly and Co were entitled to an extension of time. Mr MacKay became increasingly disillusioned with the architect and asked Knowles for assistance. It is Walter Lilly’s position that Mr MacKay (and DMW), on the advice of Knowles, undermined the architects and manoeuvred them into a position whereby they could be held liable for the delays. This point has yet to be determined.

Disclosed correspondence
During the trial, however, some of the correspondence that passed between Knowles and DMW had been disclosed. The vast majority of it was held back during the disclosure process, on the grounds that it attracted legal professional privilege. Indeed, solicitors for DMW felt the correspondence had been mistakenly disclosed and should not have been in the trial bundle at all, while Walter Lilly felt that they should be able to see it all. The parties could not agree and so Walter Lilly made the application upon which Mr Justice Akenhead gave judgment. Mr MacKay suggested in his witness statement to the court that Knowles were providing legal advice and were understood to be qualified and practising barristers or solicitors. He said he already had a contract administrator, an employer’s agent and a project manager, and what he needed from Knowles was a lawyer. In effect, Mr MacKay and DMW felt all of the correspondence disclosed between Knowles and the defendants should be out in the open.

The argument put forward was that Mr MacKay and DMW, believing that they had instructed qualified solicitors or barristers to advise, were entitled to the legal professional privilege that such instructions would afford.

Terms & conditions
In deciding, Mr Akenhead referred to R (Prudential Plc and/or Another) v Special Commissioner of Income Tax [2010], a Court of Appeal matter, in which a claimant had obtained legal advice from an accountant on tax law. In that case, Lord Justice Lloyd said: “I consider that this Court is bound to hold that legal professional privilege does not apply, at common law, in relation to any profession other than a qualified lawyer: a solicitor or barrister, or an appropriately qualified foreign lawyer … Even if we were not so bound, I would conclude that it was not open to the Court to find that LPP applies outside the legal profession.”

Knowles did not present itself as a firm of solicitors or barristers: within their terms and conditions it was stated that they had been retained to provide “contractual and adjudication” advice. They also stated that they could liaise with any solicitors that might be used. This suggested legal practitioner services were not covered by the initial retainer and Mr Justice Akenhead duly found that they were not. Knowles’ consultants were not shown to be practising barristers or solicitors and Mr Justice Akenhead was not prepared to attach legal professional privilege to their advice.

Clear decisions
The judge also ordered the other discloseable documents that Walter Lilly and Co wanted to see to be produced. Mr Justice Akenhead limited disclosure to those documents relating to legal professional or legal advice privilege, and not litigation privilege. However, it is clear from the judge’s decision that, if someone instructs a consultant and does not ask them to provide legal advice, then they run the risk of any advice that they do give having to be disclosed to the other side in future disputes.

The moral of this story is: if you are uncertain as to exactly what advice you require, but you think that it might be legal in nature, make sure you either instruct your consultant to give you legal advice (making sure in advance that they are qualified to do so) or, perhaps more simply, just send the instruction to a lawyer in the first place.

For more information on any of the matters raised in this article, or for general advice on contract disputes, contact Iain Cole: icole@lyonsdavidson.co.uk or Esme Watson: ewatson@lyonsdavidson.co.uk

Iona had been invited back following training she had given in September 2011, and has already been booked for a further date in July. Her training last month was entitled ‘Forced Marriages and Legal Remedies’.

Iona is also providing training sessions for the Bristol Safeguarding Board on 22 May and other dates later in the year.

If you would like more information about the training sessions or about forced marriage issues in general, please contact Iona Phillips on 0117 904 5878 or by emailing iphillips@lyonsdavidson.co.uk.