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Michelmores’ Corporate team has advised Ferry Farm Community Solar in West Sussex on the issue of its secured bond offer, promoted by Triodos Bank and launched on their crowdfunding website on 24 November. The offer was extremely popular and was fully funded in less than a week.

Ferry Farm Community Solar is a community benefit society. Its 5MW solar farm has around 18,700 panels which generates over £670,000 a year in revenue. The funds will be used to repay a bridging loan to secure and finalise the long-term financial health of the society. Following an earlier share offer in 2016, the project has generated 24 million kilowatt hours of renewable energy as well as £135,000 in funding to help tackle fuel poverty in its local area and support community projects.

The Michelmores team was led by Alexandra Watson, with support from Adam Quint.  Alex said:

“It was a pleasure to advise Ferry Farm Community Solar on this exciting new phase. This venture will secure the longer-term future of the community benefit society and will not only make available clean energy for their local community but invest in its wellbeing.”

The Michelmores team also acted for Thera Trust on its bond issue earlier in the year.

Following the recommendations of the Low Pay Commission published earlier this month, the Government has announced the increased National Living Wage (NLW) and National Minimum Wage (NMW) rates which will come into force from April 2021.

In his comprehensive spending review, Rishi Sunak confirmed that the NLW will increase 2.2% to £8.91 from 1 April 2021 and will become available to people aged 23 and above, down from the current age of 25.

Who gets the minimum wage?

All ‘workers’ are entitled to receive at least the NMW, which currently applies to under 25s, or NLW, for over 25s, for each hour that they work. This is a legal requirement for all workers and cannot be circumvented; contracts for payments below the minimum wage are not legally binding and failure to comply is a criminal offence. The minimum rates, set out in the table below, are gross of tax and are the minimum that should be paid regardless of tax payer status.

What is the Low Pay Commission?

The Low Pay Commission (LPC) is an independent public body that advises the Government each year on the NMW and NLW. The LPC is a social partnership body, made up of nine Commissioners; three from employer backgrounds, three from employee representative backgrounds, and three independents, including the Chair. This year, Government has accepted in full the recommendations made by the LPC.

The National Minimum Wage Rates

* The age threshold for NLW has been lowered to include 23 and 24 year olds from 1st April 2021.

Moving the NLW age threshold

This year has been a particularly challenging year for young workers. More than half of the youngest workers (aged 16-18) work in the sectors that have been hit hardest by lockdown measures, including hospitality and non-essential retail.

The LPC states that its recommendation to reduce the NLW age threshold was based on seven arguments:

1. “The use of the 21-24 year old rate amongst that age group is low; fewer than 100,000 workers aged 23-24 have a stated hourly rate below the NLW;
2. Moving this age group up to the NLW would result in reasonable bites (defined as the ratio of the minimum wage to median hourly pay for that age group);
3. 23-24 year olds are similar to 25 year olds across a range of indicators. This is true in terms of the ways they have been affected by the lockdown – including the proportion furloughed or working no hours, and the rates at which they are returning to work. However, their unemployment is increasing at a faster rate than older workers;
4. Stakeholders agreed that the NLW age threshold should be lowered;
5. Research evidence supports the change. The last time the age threshold of the adult rate was lowered in 2010, econometric analysis found no significant negative employment effect. This is particularly relevant as the change took place in the aftermath of the financial crisis;
6. Demographic changes over the next few years are also likely to reduce the risk. The size of the 21-24 year old age group will get smaller; and
7. Record high employment and a tightening labour market were likely to offer protections to young workers. Although this argument has not stood the test of this year, and the position of 23 and 24 year olds has weakened in the pandemic, the LPC decided that on balance, the majority of arguments made in the youth review continue to support the change.”

What this means for employers

2020 has brought unforeseen challenges for us all, employers and employees alike. Indeed, recent studies have shown the number of people in the UK earning below the minimum wage has risen more than fivefold to 2 million since the start of the coronavirus pandemic, with the lowest-paid workers in Britain suffering the most financial damage. The Office for National Statistics has reported that there were 2,043,000 jobs where employees aged 16 or over were paid below the legal minimum in April 2020, more than four times the 409,000 jobs a year earlier.

The reality of the increased NMW and NWL, which now applies to those aged 23 and above (previously it was for 25 and over only), means that employers which might not previously have had to be concerned about the niceties of the NMW regulations could find that their policies around pay and working time actually take some of their employees below NLW and/or NMW rates. The Government’s announcement in February earlier this year indicated that it would resume a ‘name and shame’ scheme for employers found to have been in breach of the regulations governing minimum wage pay. Whilst we haven’t seen much reported on this scheme so far, it is definitely something employers should keep in mind.

Action Points for employers:

1. Keep a record

There is a requirement under the NMW Regulations to maintain sufficient records to evidence that the NMW has been paid for at least the last 3 years. It is a criminal offence not to do so. As an added incentive, there is a presumption that an employee has not been paid the NMW unless an employer can prove to the contrary.

1. Be mindful of ‘salary sacrifice’

For example, this may be where employees opt for increased pension contribution or childcare vouchers by way of deduction from their gross salary. If so, it is important that this must not take the employee’s average hourly pay below the NMW. The Government has confirmed (following concerns that this denies the lowest paid the benefit of the tax breaks brought by a salary sacrifice scheme), that, whilst an employer caught paying below the NMW on this basis alone would not be subject to a penalty, they could still be ‘named and shamed’.

1. Consider your employees’ ‘Working Time’

This may or may not be applicable depending on your sector. The concept of ‘working time’ does not necessarily just mean the time spent by the employee doing his/her job. For example, if there any mandatory steps for an employee at the beginning or end of their working day, e.g. security checks or drug and alcohol tests, these processes may be included in working time. Additionally, staff working through unpaid breaks may raise issues as they are not being paid for working time.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Emily Edwards to discuss any issues you are facing.

Cast your minds back to March 2012, when the Government launched its campaign to promote adoption.

Adoption in 2012 was at its lowest point in a decade – with only 3,000 children adopted in 2011. In 2012, only 60 babies (children less than 12 months) were adopted.

Led by Michael Gove MP, Secretary of State for Education, who was himself adopted as a baby, the Government wanted to promote early successful adoptions – not thwart them.

The Government were firmly of the view that the ‘adoption system’ took too long. Things needed to be speeded up. Decisions to remove children from their birth families needed to made in a more timely way. More children ought to be provided with a stable, loving and permanent adoptive home. And here began the firm focus on timescales within adoption.

What has changed?

Since 2012, everything has been speeded up and shortened. The adoption assessment (two stage process) has quickened. Prospective adopters can now expect to be assessed within six months by their Local Authority.  The family justice system has sped up –  care cases now concluding within 26 weeks not within 50+ weeks, previously taken. First4Adoption was launched providing immediate comprehensive on line information to prospective adopters.

Economies of scale became a powerful argument within adoption. A huge increase in children requiring a stable, loving and permanent adoptive home was anticipated. Government expansion grants were awarded to enterprising adoption agencies that began to size up to meet the demand.

For a while in 2013, the numbers of children requiring adoption did increase. As at March 31st 2013, there were 5,480 children waiting to be adopted (as opposed to 3,000 in 2011). Numbers of approved adopters have also dramatically increased. In 2013/4, 5,450 adopters were approved – an increase of 32% from 2012/3

And then the Government adoption reform agenda began to go wrong

Background to the Myth Buster Document

In September 2013, two high profile court judgments were reported – Re B and Re B-S. The impact of these two judgments upon the Government’s adoption reform agenda is staggering.

By way of background, when Social Services decide that the plan for a child is likely to be adoption then have to two steps to take;

• The plan for adoption must be approved by a senior manager within Social Services (Agency Decision Maker).
• Then make a Court application to a Placement Order – to be able to place the child for adoption.

No of adoptions are continuing to decline

The Adoption Leadership Board has reported a 47% decrease in Agency Decision Makers approving an adoption plan for a child. And a 51% decrease in the granting of Placement Orders. In short, rather than increasing the numbers of children to be adopted – there has been a dramatic 50% reduction.

Practitioners within adoption are witnessing unprecedented times with more approved adoptive parents than ever before but no suitable children to match them with.

The Government is determined to try to resolve the current situation and within the last few days has published a 14 page – Myth Buster document. The aim of the document is to undo the perceived damage and misunderstandings caused by the September 2013 Re B and Re B-S cases

What are Re B and Re B-S all about?

The Supreme Court, in Re B and Re B-S, upheld the plan of adoption. The conclusion of each case is not dramatic. The Court agreed with the lower courts and confirmed the plan for adoption. What is far more dramatic are the general comments made by the Supreme Court about adoption.

In Re B, the Supreme Court used powerful language when referring to non consensual adoption – “very extreme thing”; “a last resort”; “nothing else will do” and “exceptional circumstances”.

Re B-S, the Court repeated some of the statements in relation to adoption made in Re B, thus adding weight. The Court also took the opportunity in Re B-S to highlight the need for all professionals to provide expert, high quality, evidenced based analysis of all realistic options for a child – and the arguments for and against each of these realistic options.

The Re B-S judgment is essential reading for all childcare law practitioners. It is hard to disagree with a single word of it.

However, perhaps in an effort to speed things up, sloppy professional practices had developed. A “sloppy” practice of – identifying a child who was suffering significant harm (typically neglect), quickly deciding that the birth parents were unable to change and then with similar haste making a plan for adoption because the child was young.

It may have been, in some cases, a great deal of good work had been done by the professionals involved – but this was not reflected in the “sloppy” court paperwork. In other situations, perhaps more could have been done to support birth family members and work with wider family members – to try to keep the child within the family.

The fundamental principles of the Children Act 1989 remain. Provided it is in the children’s best interests;

• children should remain living within their birth families
• the placement of a child with a relative or friend to the child is to be given preference over fostering and adoption.

In my view Re B and Re B-S were reminding us of this. Speed is not everything.

Since Re B and Re B-S, there are worrying reports of Courts favouring long term fostering for toddlers – because fostering in an option and “will do” and better than entering the “last resort” and “exceptional” world of adoption.

There are also anecdotal reports of any and every wider family member being assessed and reassessed, because of the drive to keep away from adoption. This confusion may have culminated in a 50% reduction in children being placed for adoption.

The challenge of Re B and Re B-S is the language. Lawyers like to analyse and dissect language. Numerous fostering placements rather than a permanent adoptive home – may get us over the “will do” hurdle, for a toddler. But we are trying to act in the best interests of vulnerable toddler.

The language of “last resort” – suggests only use this if you are absolutely forced to and ‘we would prefer it if you didn’t’. This is unlikely to have been the intention behind the language used in Re B.

Coupled with a Re B-S compulsion to comprehensively analyse options for a child to a requisite Court standard, seems to have resulted in any placement option, if it contains some positives, being seized upon in preference to adoption.

Re B and Re B-S were trying to remind us, in the strongest terms, of the need to give preference to children remaining within their birth family, including wider birth family, provided it is in the child’s best interests. Part of the process of preferring is offering appropriate support.

We are also reminded that in making decisions for a child, which are against the wishes of their parents, the thought processes of professionals involved need to be carefully evidenced and analysed, to the standard of the Court. It is the Court who ultimately decides and grants a Court Orders.

Earlier in 2014, BAAF published a Practice Note – Evaluation of Permanence Options for a child in care proceedings in England – which practitioners may find useful.

In essence the Government’s Myth Buster reminds us that;

• The legal test for adoption has not changed
• Only realistic options need to be considered, not all options for a child.
• Adoption is not only appropriate where “nothing else will do”
• Planning for adoption must not wait

It is unlikely that the Myth Buster document will redress the current confusion within adoption. It is too long. In addition, its status is unknown. It may be difficult to quote the Myth Buster document in Court. The document is neither legislation nor case law.

It is rumoured that the President of the Family Division, Sir James Munby – author of Re B-S will shortly produce a published judgment, resolving some of the confusion within adoption caused by the September 2013 case law. A new case for us to quote to counter Re B and Re B-S  – and undo some of the confusion surrounding adoption. We will see.

In October 2018, the Government commenced consultation on the Gender Reassignment Act 2004 (the Act). Whilst the Equality Act 2010 (EqA) provides the same protection to all protected characteristics, including sex and gender reassignment, the Act provides specific protection to trans individuals.

Prior to the consultation, there were concerns that the Act was archaic, requiring a heavily medicalised process for an individual to obtain a gender recognition certificate, in contrast to countries such as Norway and Argentina, where a simpler self-determination process is in place. Over 100,000 people and organisations responded to the consultation, many of whom supported some kind of reform.

In September 2020, the Government published its response and the Minister for Women and Equalities, Liz Truss, announced the Government’s plans to reform the gender recognition process.

This article intends to set out the key changes and clarify the interaction between the Act and an employer’s obligations under the EqA.

What is the Act?

To summarise, the Act governs how an individual can legally change their gender from male to female or vice versa. By early 2015, there were approaching 4,000 applications, with only a little over 100 refusals. In an effort to ensure that a decision of this type is considered carefully by the individual in question, the Act contains numerous and rather onerous requirements.

At present, if an individual wishes to change their gender, they must:

• obtain a letter from their doctor which states that they have a condition called gender dysphoria;
• show the Government a report about the medical treatment they are undergoing;
• prove they have lived as the new gender for at least two years;
• sign a statement in front of a solicitor that they agree to stay living as the new gender for the rest of their life;
• if married, obtain consent from their husband or wife to the change;
• be over 18; and
• pay a fee of £140.

Once the above steps have been satisfied, the individual will be given a gender recognition certificate from the Government, which means that they are officially recognised as their new gender.

Consultation on the Act

Of the 100,000 respondents to the consultation, over 1,000 people were trans. A commonly raised theme by those who had personally attempted to obtain a gender recognition certificate under the Act was that the process was bureaucratic, time consuming and expensive, with one respondent stating that they “ended up sending a pack of evidence two inches thick” with their application.

Even more concerning than those who had applied under the Act, was the huge proportion of trans respondents (94.5%) who had not applied at all. Whilst it will surely be the case that the reasons for this will vary, one respondent noted that “it requires far too much evidence and I feel uncomfortable sending original copies of all my personal legal documents off in the post.” In addition, respondents commonly voiced the feeling that the application process was dehumanising, humiliating or had made them feel like they needed to justify themselves or prove who they were.

Stonewall has summarised some additional key trends in the consultation responses as a whole:

• Nearly two thirds (64.1 per cent) called for the requirement for a diagnosis of gender dysphoria to be removed.
• Four in five (80.3 per cent) supported the removal of the requirement for a medical report detailing all treatment.
• Nearly four in five (78.6 per cent) called for the removal of the requirement for individuals to provide evidence of having lived in their ‘acquired gender’ for a period of time.
• Five in six (84.9 per cent) called for the removal of the requirement that a married trans person must obtain consent from their spouse before successfully obtaining legal gender recognition.

Notwithstanding this, there were also responses to the contrary, highlighting the importance for restrictions to be in place to ensure that those who take the decision to change their gender take “gender change seriously“.

What changes are the Government making?

The Government has decided that the current provisions within the Act allow for those that wish to legally change their sex to do so safely and fairly. Liz Truss stated that “it is my view that the balance struck in the existing legislation is correct. There are proportionate checks and balances in the system, alongside support for people that want to change their legal sex.”

As such, the changes are limited and include:

• A significantly reduced application fee;
• The application system being moved into one accessible place on the Government website;
• Action to ensure transgender people can access the appropriate healthcare they need;
• The opening of three new gender clinics in an effort to reduce waiting times.

As such, the Government’s view is that the Act correctly strikes the balance between (i) respecting the rights of those wishing to change their gender; and (ii) ensuring that applicants take gender change seriously. However, this does mean that the process won’t be de-medicalised, and a self-determination process – as is already in place in the Republic of Ireland, Norway and Argentina – will not be introduced.

How will the Act interact with an employer’s obligations under the Equality Act 2010?

As stated above, the EqA provides broader protection to all protected characteristics in comparison with the Act, which provides specific protection to trans people.

Under section 7 of the EqA, gender reassignment is defined as follows:

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex…”

As such, for an employee to be protected from gender reassignment discrimination, they do not need to have undergone any specific treatment or surgery to change from their birth sex. The Equalities and Human Rights Commission’s guidelines also clarify that there is “no requirement for a trans person to have any kind of medical supervision or intervention” to be given the protection from discrimination under the EqA.

However, it is also worth noting that the House of Lords (as it then was) identified the 4 stages of gender reassignment in the case of Bellinger v Bellinger as follows: (i) psychological assessment; (ii) hormone treatment; (iii) the so-called ‘real-life test’ where the individual temporarily transitions to the opposite sex; and (iv) permanent transition to the opposite sex and/or gender reassignment surgery (if desired by the individual, but not a requirement of Stage 4).

Difficult questions can sometimes arise for employers in respect of the earlier stages of the gender reassignment process. With matters such as the use of the correct pronouns, it is recommended that employers respect the wishes of an employee regardless of the stage of the process in which they fall and provide adequate training to staff in this regard.

Trickier considerations have arisen with regards to gender specific facilities. For example, there has been ample press coverage of when an individual should be permitted to use the toilet facilities designated to their newer gender. The case of Croft v Royal Mail Group plc shows that a “judgment has to be made as to when the employee becomes a woman and is entitled to the same facilities as other women“. There is no doubt that an employee who has obtained a gender recognition certificate will be deemed to fall under stage 4, as they have permanently transitioned to the opposite sex. Hence, they will be fully entitled to the same treatment as non-trans individuals. This is not to say that those who are at earlier stages of the transition will not be entitled and such judgment will depend on the facts of the specific case.

As such, whilst the proposed changes to the Act are limited, employers should be aware that a gender recognition certificate is evidence of a permanent transition to the opposite sex and any treatment to the contrary will likely constitute discrimination. At the same time, the absence of such a certificate does not remove an employer’s obligations under the EqA, which provides that a person has a protected characteristic from the stage of “proposing to undergo” gender reassignment.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. 

Background

The Grenfell Tower Fire took place on 14 June 2017. The fire resulted in 72 fatalities and it was the greatest loss of life in a residential fire since the Second World War.

Following the fire, the Government commissioned the Independent Review of Building Regulations and Fire Safety. The Review, led by Dame Judith Hackitt, highlighted ‘deep flaws‘ in the current regulatory system covering high-rise and complex buildings and recommended that the Government should address the following:

• There is a lack of clarity on roles and responsibilities within the industry which ‘precludes robust ownership of accountability‘.  The report therefore recommends a very clear model of risk ownership, with clear responsibilities for the Client, Designer, Contractor and Owner to demonstrate the delivery and maintenance of safe buildings.
• There is ignorance within the industry towards regulations and guidance which is often overlooked by those who should read it and the guidance is often misinterpreted. Accordingly a new, simple and effective regulatory framework was recommended which is outcomes-based as opposed prescriptive rules and complex guidance.
• The above issues have facilitated a ‘cultural issue‘ within the industry where there is a lack of emphasis on delivering the best quality building possible, in order to ensure that ‘residents are safe, and feel safe’. The Report recommends that a new framework should put residents at the heart of a new system of building safety, empowering them with more information and engaging them on how risks are managed in their building.[1]

Draft Building Safety Bill

Published in July 2020, the draft Building Safety Bill puts the wheels in motion of the Government’s commitment to fundamentally reform of the building safety system. Those involved throughout the lifecycle of a building, – its design, construction, ownership and management – should consider the implications of the Bill and its impact on their future operations.

‘Higher-Risk’ residential buildings

Buildings that pose a ‘higher risk’ are one of the key areas of scrutiny in the Bill. These are new and existing residential buildings defined as being:

• 18 metres or more above ground level; or
• a building which contains more than 6 storeys (ignoring any storey which is below ground level).

The building must also contain:

• two or more dwellings (i.e. house or flat); or
• two more rooms used for residential purposes (e.g. supported accommodation); or
• student accommodation.

Residential care homes, prisons/detention centres and temporary accommodation including hotels, hostels, guest houses, hospitals and hospices are excluded from the definition although there is scope for the Secretary of State to widen the definition in the future. [2]

Structure of the Bill

The Bill is arranged into the following 5 parts:

• Part 1 provides a brief overview of the Bill.
• Part 2 introduces a new Building Safety Regulator (‘BSR’) with powers to enforce higher standards of safety across all buildings to ensure the safety of people in or about buildings.
• Part 3 deals with amendments to the Building Act 1984 including replacing the local authority with the Building Safety Regulator as the building control authority for enforcing the requirements of building regulations for a) higher-risk buildings, b) buildings which are to be higher-risk buildings and c) buildings which become higher-risk as a result of building work being undertaken.
• Part 4 introduces the new roles of the ‘Accountable Person’ (usually a management company or the owner of the building) and Building Safety Manager and sets out their duties in relation to safety risks in their building.
• Part 5 sets out supplementary information, including the creation powers to make provisions for the regulation of all construction products placed on the UK market allowing them to be withdrawn from the market if they present a risk.

The Bill extends to England and Wales only, (save for Part 1, which contains an overview of the Bill and extends to the whole of the UK).

Part 2 – Building Safety Regulator

The BSR will form a new division within the Health and Safety Executive. The Explanatory Notes which accompany the Bill state that its role will broadly cover the following objectives:

1. Implementing the new, more stringent regulatory regime for higher-risk buildings
2. Overseeing the safety and performance of all buildings. This objective has 2 key strands, namely:
   • reviewing and overseeing the performance of other building control bodies ( i.e. local authorities and Approved Inspectors) and having the power to impose sanctions for poor performance
   • Reviewing and delivering guidance on current and new building standards and safety risks such as changes in building regulations.
3. Assisting and encouraging competence among the built environment industry, and registered building inspectors.[3]

The BSR will fulfil its role with the assistance of various committees. The first of which will be the Building Advisory Committee. This newly-appointed committee will replace the existing Building Regulations Advisory Committee for England (BRAC), and will advise the BSR about matters connected with most of its building functions. A further Committee on Industry Competence which will address the knowledge, skills and experience needed to carry out specific roles. Finally, a Residents’ Panel will advise the Building Safety Regulator on strategy, policy, systems and guidance which will be of particular interest to residents of higher-risk buildings.

Enforcement Powers

The BSR will be given the power to issue compliance notices and provide a deadline by which issues of non-compliance need to be rectified. Furthermore, during the design and construction phase, the BSR will also be able to issue stop notices which effectively postpone work until the issue on non-compliance is rectified.

Failure to comply with compliance and stop notices will be a criminal offence, with a maximum penalty of up to two years in prison and an unlimited fine.

The BSR is also authorised to appoint a multi-disciplinary team of appropriately qualified individuals to assist the BSR in carrying out its enforcement related functions. Such powers may include the written authority to visit a building site to inspect the construction of the higher-risk building and ensure it complies with building regulations.

Part 3 – Amendments to the Building Act 1984

Reduced Power of Local Authorities

The Bill amends and creates further provisions within the Building Act 1984. Of particular note is the replacement of the local authority with the Building Safety Regulator as the building control authority for higher-risk buildings.

Accordingly, the power to enforce the requirements of building regulations in respect of higher-risk buildings is taken away from local authorities and centralised under the control of the BSR. Local authorities (or a registered building control approver) will remain as the building control authority for other buildings.

Dutyholder regime

Existing building regulations do not stipulate particular competence requirements of persons carrying out building work, save that ‘building work shall be carried out in a workmanlike manner.‘[4] However, this provision emphasises the quality of the work as opposed to competence of the individual undertaking the work. The Construction (Design and Management) Regulations 2015 do contain competence requirements for contractors and designers but the regulations do not contain specific provisions relating to higher-risk buildings.

One of the BSR’s core functions is to implement a more rigorous regime for higher-risk buildings. Through the introduction of a dutyholder regime, the BSR will be able to ensure that the responsibility for managing building risks lies with the appropriate person or entity that created the risk in the first instance.

The dutyholders will be individuals or entities who are responsible for particular stages throughout the lifecycle of a building. They include those listed under the Construction (Design and Management) Regulations 2015. Accordingly, the Client, Principal Designer, Principal Contractor, Designer and Contractor will all bear accountability responsibilities for managing risks.

In addition to the requirements of the CDM Regulations, a dutyholder’s ability to bear its responsibilities will be assessed through competence requirements. The Explanatory Notes to the Bill state that for individuals, the competence requirements will relate to their skills, knowledge, experience and behaviours.[5]

Wider guidance, which will provide examples of the skills, skills, knowledge, experience and behaviours, has not yet been published and once the Bill has received Royal Assent, Secondary Legislation will be introduced enforce these competence requirements.

Gateway Points

The amendments to the Building Act also allow for the creation of a series of Gateways which will be established to ensure that building safety risks are considered at each stage of a higher risk building’s design and construction:

• Gateway 1: the planning phase – mirroring the existing process by which planning permission is granted in England.
• Gateway 2: pre-construction phase. In-line with the guidance, dutyholders will be required to submit key information to the Building Safety Regulator to demonstrate how the building, once built, will comply with the requirements of building regulations.
• Gateway 3: the completion / final certificate phase pre-occupation where and the building control body assesses whether the work has been carried out in accordance with the building regulations.[6]

Central to the Bill’s objective of ensuring that each stage of a building’s lifecycle is closely monitored is the concept of the golden thread of information. This information will include fire and structural safety building information held digitally to specific standards and will be used to ensure that ‘those responsible for the building have the required information to manage building safety during throughout the lifecycle of the building.’[7]

Statutory guidance will be issued to support the golden thread concept and will specify the information and documentation that must be obtained and kept, and the standards to which these documents and information must be stored and maintained.

Parts 4 & 5

As noted above, Part 4 set out the duties of the Accountable Person; the dutyholder for higher-risk buildings in occupation, and the Building Safety Manager, whose role is to aid the Accountable Person in the day-to-day management of fire and structural safety in the building. The duties of the Accountable Person include:

• Registering the building and applying for a Building Assurance Certificate. The certificate will be granted by the BSR if it is satisfied that the Accountable Person is taking reasonable steps to prevent major incidents occurring as a result of building safety risks. If granted the certificate must be displayed in a prominent position in the building.
• Provide a ‘Safety Case Report’ which is a document that highlights all the key components of the safety case with references to supporting documentation. The Report and its evidence show how building safety risks are being managed, contained within the golden thread of information.

Part 5 contains provisions which aim to ensure that all construction products sold within the UK market are governed by a regulatory regime. The Building Safety Bill will do this by:

• Creating a statutory list of ‘safety critical’ construction products which comprises of products that would risk causing death or serious injury to any person in the event of a failure of the product.
• Requiring construction products that are not covered by the existing regime or included on the statutory list to be a safe product.

The Bill creates provisions for monitoring compliance which include powers conferred on the local authority to issue notices which can have any of the following effects:

• requiring a person to warn others of the risks attaching to a product
• requiring the withdrawal of a product from the market
• requiring the recall of a product from persons to whom it has been supplied.

The penalties for non-compliance include a fine, imprisonment not exceeding 51 weeks (in England) or both.

The guidance notes stipulate that both Trading Standards and the Secretary of State will be given enforcement powers for all the existing and new parts of the regulatory regime.[8]

Comment

The Bill has been widely recognised as an important regulatory shift in the construction industry. Whilst the intensive nature of the new regulatory scheme will likely result in buildings costing more and taking longer to construct, these consequences are a small sacrifice to ensure the safety of buildings and the lives of those occupying them.

Whilst it is not immediately clear how long it will take for the Bill to become law, the wider real estate sector should familiarise itself with the provisions of the Bill in respect of the construction, ownership and maintenance of buildings – especially in the residential sector.

We shall be hosting a webinar on this topic in due course. To receive notification of our webinars subscribe here. In the meantime, if you would like to discuss any points arising from this topic then please contact Michelmores’ Construction and Engineering team.

Michelmores Real Estate and Corporate teams have advised Kingsbridge Estates on its joint venture with Bridges Fund Management. The JV has been formed for the acquisition of a development site at New Lane in Havant, Hampshire. The 16.5 acre logistics site was acquired for an undisclosed sum from the site’s occupier, John Wyeth & Brother, a subsidiary of pharmaceutical giant, Pfizer.

The Michelmores team comprised Corporate partner Alexandra Watson and Real Estate Partners Melanie Hughes and Paul Paling.

Commenting on the deal, Melanie Hughes said:

“It was a pleasure to advise Kingsbridge Estates on the joint venture arrangements with Bridges, allowing the JV vehicle to proceed with this strategic acquisition. We look forward to the unveiling of their exciting future plans for the site.”

Chris Fry, CEO of Kingsbridge Estates, said

“We are delighted to have partnered with Bridges to deliver this significant regional industrial and logistics scheme. It was a pleasure to work with Michelmores on the joint venture and we highly value their commercial and pragmatic approach.”

Freeths advised Bridges Fund Management and advised on the property acquisition.

Capital Gains Tax (CGT) is a tax on the increase in the capital value of an asset when it is sold or given away. Some assets, such as a person’s main residence, are not subject to CGT. Typically, investors pay CGT on the disposal of second properties, and investments and business assets such as shares.

The Office of Tax Simplification (OTS) have just published their review of CGT which looks at how individuals change their behaviour based on the current CGT rules. The review located four areas in which the OTS considered that CGT was counter-intuitive, and created odd incentives and opportunities for tax avoidance.

It is better to review estate plans now before any new tax changes creep in. It has been reported that there is a worry that if the recommendations were brought into effect – especially the change to the capital gains tax uplift on death, some assets would become ‘unsellable’ due to the increased gain (and increased tax liability).

The proposed changes

1. Rates and Boundaries

At present, there are three rates of CGT applied to higher and additional rate taxpayers: 20% for the gain on most assets, 28% for the gain on residential property, and 10% for the gain on business assets that attract Disposal Relief or Investors Relief. All three rates are significantly lower than the equivalent rate of Income Tax, which is taxed at 40% for higher rate taxpayers and 45% for additional rate taxpayers.

The OTS has suggested that:

• CGT rates should be simplified and aligned with Income Tax rates; and
• a distinction should be made between the applicability of CGT and Income Tax  to ensure that the right tax is paid. The report raised examples where structuring can take place to ensure that a lower rate of tax is paid.

2. The Annual Exempt Amount

The Annual Exempt Amount (the allowance) is the tax-free gain that can be made in any tax year. It is currently set at £12,300 for individuals.

The OTS have said that the allowance is too high. Frequently, net gains are reported close to, but not over, the allowance to ensure that no CGT is paid in any one tax year. The OTS has suggested that the allowance is reduced to between £2,000 and £4,000, meaning that more people would be brought within the scope of CGT.

3. Capital Transfers

When someone dies their assets are passed to their beneficiaries. CGT is not paid on death and beneficiaries acquire the assets at the date of death value. This is known as the CGT uplift on death. The original policy reason was to ensure that an asset is not taxed twice for CGT and Inheritance Tax.

The OTS argues this uplift can impede assets passing down generations as people hold assets until death. If the asset is not subject to Inheritance Tax the beneficiary can receive the asset with no tax paid. The OTS suggests that the CGT uplift on death is removed in its entirety so new owners of assets are treated as acquiring them at the original acquisition cost.

4. Business Reliefs

Disposal Relief (which replaced Entrepreneurs’ Relief) and Investors’ Relief applies a 10% rate of CGT against the gain on certain business assets. These reliefs are considered ineffective in terms of achieving policy aims as they do not encourage the growth of businesses and investment in them (as an alternative to investing in a pension). According to the report, these reliefs should be revisited and targeted to achieve policy aims.

We regularly advise clients in relation to the management and inheritance of wealth, and on estate planning structures. If you would like to discuss your estate planning options with us then do get in touch.

A recent Employment Appeal Tribunal decision has resulted in a fundamental change to the law on collective consultation, making the road ahead one that will have to be carefully navigated by employers.

The case of USDAW v WW Realisation Ltd involved the collapse of high street store Woolworths, where trade union USDAW sought protective awards for a failure to consult. Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) provides that employers only have a duty to consult employee representatives where 20 or more redundancies are proposed at one ‘establishment’ in a 90 day period. The Employment Tribunal ruled, in line with section 188, that each Woolworths store was a separate ‘establishment’ and so claims relating to stores with less than 20 staff failed. As a result, those employees in bigger stores were given protective awards which totalled £70 million, whilst employees in smaller stores of under 20 staff received nothing.

USDAW appealed the decision to the EAT, where a landmark decision was handed down. The EAT ruled that the duty to consult would apply to all the redundancies made by Woolworths, regardless of whether employees were based at stores with more or less than 20 staff. The judge declared that the ‘at one establishment’ rule contained in TULRCA was incompatible with the corresponding EU Directive. The EU Directive states that an employer has a duty to consult where 20 or more redundancies by the same employer are made within any 90 day period, ‘whatever the number of workers in the establishments in question’. Therefore, the ‘at one establishment’ rule in TULRCA had to be disregarded in order for UK legislation to properly reflect EU law.

It is unusual for a court to disregard the words of a statute in this way. However, having examined the Government’s consultation on the implementation of TULRCA, as well as the parliamentary debates surrounding the legislation, the EAT was satisfied that the ‘one establishment’ specification had not been mentioned and, therefore, it could not be regarded as integral to the policy of the legislation. The EAT was persuaded that parliament’s intention had been to correctly implement EU law.

The judgement in USDAW v WW Realisation Ltd will significantly affect large, multi-site organisations which have previously been able to use the ‘one establishment’ test to side-step the need for collective consultation. It seems that large employers such as these will need to ensure an increasingly ‘joined-up’ approach between their different sites. They will need to be aware of the number of redundancies being proposed across the organisation at any one time, in order to avoid inadvertently breaching the collective redundancy obligations.

The winners of the 18th annual Michelmores Property Awards were announced at a virtual celebration hosted by former Exeter Chiefs rugby player, Chris Bentley on Thursday 12 November. The evening celebrated outstanding property and construction projects in Devon, Somerset, Bristol, Dorset and Cornwall, across ten categories.

Redruth’s Kresen Kernow was awarded the coveted Building of the Year prize, for its re-imagining of a derelict, post-industrial site into an important community asset and world-class archive facility. The building was created with sustainability in mind, and promises to reinvigorate the local area by inspiring further regeneration and job creation. The scheme also received the Project of the Year (over £5m) award.

Copper Building in Bristol won the Residential Property of the Year (36 units and over) award. This brand new building continues the revitalisation of Lakeshore – the former Imperial Tobacco HQ. This post-industrial site was once a thriving space, providing vital employment to the local area. The new four-storey apartment development enhances the site, providing a further 136 contemporary dwellings. The apartments benefit from parkland views, access to allotments, a gym and underground parking, just a few miles from the centre of Bristol.

The Wave in Easter Compton, near Bristol took home the prize for Leisure & Tourism Project of the Year. This inspired project has used innovative technology to successfully create a 180 metre long inland surfing lake that produces consistent, safe waves to enable more people to practice the sport all year round. A clubhouse with bar, restaurant, shop and educational spaces sit alongside the lake and there are plans to expand the site with camping facilities.

The Masterplanning for the Future category was introduced this year to celebrate the beginning of the new decade of inspiring development; it was awarded to West Carclaze Garden Village near St Austell. This scheme proposes an exciting, ecologically ambitious new development that will provide 1,500 homes, two solar-parks, community and education spaces as well as employment space and job creation to the area. The new village plan offers residents a sustainable lifestyle with a distinctly Cornish feel, 140 hectares of green open-space and ‘green’ travel initiatives as well as lakes and sport facilities.

The John Laurence Special Contribution Award, which recognises and celebrates outstanding property and construction professionals and organisations in the region, was jointly awarded to Glayne Price of LHC Design and South West Women in Construction.

The other winning projects for 2020 include: Seaton Beach in Seaton – Residential Project of the Year (35 units and under); Locksbrook Campus – Heritage Project of the Year; Hi Tech & Digital Centre – Education Project of the Year; Chi Winder and Chi Vesta – Project of the Year (under £5m).

Emma Honey, Head of Real Estate at Michelmores, said: “My congratulations go to the winning entries to this year’s Michelmores Property Awards and well done to all those schemes shortlisted. The South West’s property and construction industry has shown itself to be a force to be reckoned with during these last eight months and I am very pleased that we have been able to celebrate the region’s fantastic work by way of a virtual celebration. My heartfelt thanks go to our judges for giving their time so generously, and, of course, to our sponsors for their support.”

View our winners’ publication here

This year’s winning projects:

Cornerstone v University of the Arts London [2020] UKUT 248 (LC)

Following the grant of interim code rights, which the land owner challenged unsuccessfully in the Court of Appeal last year, this case concerned the operator’s application for code rights, under paragraph 20, to install and operate apparatus on the rooftop of the London College of Communications (LCC).

The land owner opposed the imposition of code rights, as it had agreed to sell the LCC to a developer with vacant possession (subject to a lease-back) prior to its demolition. The land owner argued that the imposition of the code agreement would prevent it from complying with its obligations to the developer. Accordingly, the land owner would suffer prejudice which could not be compensated by money and that prejudice would not be outweighed by the public benefit of imposing the code rights.

Public benefit

Contrary to the land owner’s arguments, the Tribunal found that it could only consider the public benefit of the rights being imposed as against no rights being imposed and could not assume that interim rights could be granted or the apparatus could be installed elsewhere. Furthermore the Tribunal found that it should not weigh up the “net public benefit” of the imposition of code rights, in that the code rights might have a negative effect on the redevelopment, which it was argued would also be in the public benefit.

The Tribunal found that public benefit will generally outweigh a land owner’s inconvenience, annoyance and readily calculable losses, but that in the present case there was more at stake. The case crossed the boundary between prejudice that has to be suffered by a land owner for the public good and prejudice that is too much to ask and accordingly declined to impose code rights.

Although the decision in this case went in the land owner’s favour, the Tribunal made it clear that the land owner will generally face an uphill battle to show the prejudice it suffers outweighs the public benefit.

Despite declining to impose code rights, the Tribunal went on to provide its views on a number of terms of the code rights sought which were a matter of general concern in telecom disputes:

Compensation  – the land owner sought a term that compensation would be paid to compensate for any loss and damage as it arose. The operator instead proposed an upfront payment of £9,600. The Tribunal favoured the operator’s approach in order to save the time and bureaucracy of making constant calculations.

Definition of Equipment – the land owner sought a schedule of equipment which was to be initially installed on the site. The operator wanted a more general provision allowing any electronic communications apparatus. The tribunal found for the operator, noting the potential for dispute about whether a future installation comprised an upgrade or an addition. The Tribunal did note that the need to specify equipment might be greater on open land.

Access – the Tribunal denied the operator’s request for a term allowing it to access any part of the land owner’s property as might be reasonably required, finding that this would expose the land owner to unnecessary risk of disruption. The Tribunal also refused the land owner’s request to retain an unqualified right to specify a particular access route for the operator.

Right to Upgrade and Share – the operator sought to acquire the right to upgrade the equipment and share the sites without complying with the Paragraph 17 conditions (that sharing and upgrading would not impose any additional burden on the occupier and upgrading would have no more than a minimal adverse impact on appearance). The Tribunal found (as in Fothringham, also considered in this bulletin) that the burden was on the operator to show that the safeguards were not required. The Tribunal found that the conditions need not be included here, as the building was shortly due to be demolished and so appearance was not important and the land owner’s concerns over the structural integrity of the building were addressed by other clauses.

Assignment – the land owner sought to prevent assignment, underletting and other dispositions to parties other than code operators and make assignment to code operators subject to a guarantee agreement. The operator claimed that it was inappropriate to include a standard lease term in a code agreement and that all code operators were subject to the same regulation so guarantees were unnecessary. The Tribunal found that regardless of whether the agreement was a lease or not, it was inappropriate to include restrictions on alienation to parties other than code operators. However, it found that the inclusion of a requirement to provide a guarantee was reasonable, as is not to be assumed that all operators are able to meet the relevant obligations merely because they are regulated by Ofcom.

Indemnity – in deciding the extent of the indemnity offered by the operator, the Tribunal agreed with the operator that the purpose of the indemnity was not to act as a catch-all protective provision for the benefit of the land owner, but was limited to regulating and managing third party claims against the land owner, arising from the operator’s unlawful acts or omissions.

Whilst the focus data protection wise has rightly been on the General Data Protection Regulation (“GDPR”), the recent monetary penalty notices issued by the Information Commissioner’s Office (“ICO”) regarding Heathrow Airport and Bupa highlight:

1. Routine data protection risks controllers should address
2. The consequences if a controller fails to adequately secure personal data it is responsible for.

The ICO’s Director of Investigations reminded controllers that “Data protection is a boardroom issue and it is imperative that businesses have the policies, procedures and training in place to minimise any vulnerabilities of the personal information that has been entrusted to them“.

Due to the date of the breaches, both matters were dealt with under the Data Protection Act 1998 rather than the GDPR.

Heathrow Airport

Heathrow were fined £120,000 after a member of staff lost an unencrypted memory stick. It included sensitive personal data (including identifying two individuals who were trade union members or chairs), names, dates of birth, passport numbers and expiry, and details of 12-50 Heathrow aviation security personnel.

Only 2% of Heathrow’s staff had received data protection training.

Data protection guidance on an outdated intranet site was held insufficient by the ICO.

Bupa

Bupa were fined £175,000 after a rogue employee downloaded personal information of 547,000 data subjects over an 8 week period, sent bulk data reports to his personal email account and offered such information for sale on the dark web. This was over 36% of the records on Bupa’s CRM system, SWAN.

Bupa did not routinely monitor SWAN’s activity log. This meant Bupa were unaware the log had a defect which resulted in certain reports not being logged, and other reports being logged inaccurately. Therefore, Bupa was unable to detect unusual activity in SWAN, such as bulk extraction of data.

Practical Lessons

The Bupa and Heathrow monetary penalty notices remind controllers that:

1. All staff should receive data protection and information security training. Personnel who process special categories of data or large volumes of personal data should receive annual updates
2. ICT equipment should be port locked down with encrypted memory sticks limited to specific personnel for authorised purposes only. Even if your business processes limited personal data, we recommended this is implemented for confidentiality reasons
3. Adequate risk assessments should be undertaken on your databases, particularly those storing large amounts of personal data
4. You should maintain oversight of and monitor your activity logs – including data being removed from your systems. Unusual activity should be promptly investigated. In any event, staff should only be entitled to transfer data to secure locations
5. You should monitor that your policies, guidance and procedures regarding information security and the use of removable media are enforced. You should act if you become aware staff breach your policies and guidance
6. The ICO will view your failure to follow ICO guidance such as “A practical guide to IT security” and “Bring Your Own Device (BYOD)” as an aggravating factor in any personal data breach.

For more information please contact Nathaniel Lane in our Technology & Innovation team.

This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.

Unfortunately, HMRC have now ceased to offer favourable terms for people who have not paid the right amount of tax in relation to wholly or partly offshore matters and state that they are toughening their approach to offshore non-compliance; utilising information provided by countries that have subscribed to exchange information under the Organisation for Economic Co-operation and Development Common Reporting Standard (‘CRS’).

However, the Worldwide Disclosure Facility (‘WDF’) is a ‘final chance’ for individuals who have offshore liabilities to come forward and bring their tax affairs up to date with HM Revenue & Customs (‘HMRC’) on relatively beneficial terms.

After 30 September 2018, much higher penalties and sanctions will apply under the ‘Requirement to Correct’ and HMRC warn that failing to disclose before this date could result in an increased risk of criminal investigation and being ‘named and shamed’ on the HMRC website. Therefore, HMRC are encouraging people to come forward before this date and make a full disclosure of all previously undisclosed UK tax liabilities under the WDF.

Who is eligible to use the Worldwide Disclosure Facility?

Anyone, including Non-UK Residents, can make a disclosure of UK tax relating to income, assets or activities located wholly or partly outside the UK. This can relate to an individual’s affairs, as well as limited companies, trusts, estates or limited liability partnerships. HMRC are not just targeting hardened tax evaders and convey that individuals who have not paid ‘the right amount of UK tax’, whether through innocent mistake, outdated advice or ignorance should come forward and use the WDF as long as their tax liability relates, wholly or partly, to an offshore matter.

However, if at any time HMRC knows or suspects that assets or funds included in the disclosure are wholly or partly made up of criminal property, they have the discretion to refuse WDF applications.

Individuals may choose to appoint a tax adviser to make a disclosure under the WDF on their behalf. Although the online WDF portal looks deceptively simple to use, there are many complexities that people may not be aware of such as the number of years to include, type of penalty to apply and tax legislation that might be relevant.

The disclosure process

A person or their agent notifies HMRC of their intention to make a disclosure, which triggers HMRC to issue a ‘disclosure reference number’ and set a 90 day deadline within which the full disclosure must be submitted.

Within this timeframe, all of the relevant information must be collated and processed in order to complete and submit the disclosure to HMRC, including comprehensive tax and penalty calculations for all applicable years. Delaying the notification to HMRC only serves to increase the risk of HMRC discovering the unpaid liabilities in the meantime and would subsequently remove any ‘unprompted’ penalty reduction if HMRC issued an enquiry notice before a disclosure was made.

Upon submitting the disclosure, the individual is required to make full payment to HMRC, although there are options available under ‘time to pay’ arrangements if there is evidence of hardship. Furthermore, there is a requirement to disclose the maximum value of all assets held outside the UK at any point over the last five years, including trust interests.

Once HMRC have received the disclosure, they will issue an acknowledgement within 15 days and the ‘next steps’ in the process will be set out within a further 40 days. Depending on the circumstances, the next steps may mean that HMRC will process and accept the disclosure as submitted, or in some cases they may request further information to enquire into the disclosure.

If HMRC accept a taxpayer’s offer, they will confirm this in writing and the individual can be assured that their UK tax position is up to date following full disclosure via the WDF.

If you have any questions about the WDF or would like to appoint our tax team to manage your WDF disclosure, please contact Jenna Fyfe at jenna.fyfe@michelmores.com or on +44 (0)1392 687541.