Head of Michelmores’ family team and international family law expert Daniel Eames, and Private Wealth Associate Harriet Martin, outline the implications of Brexit for individuals divorcing their EU-citizen spouses.

Proceedings commenced before the end of the Brexit transition period

For any proceedings commenced before 11pm on 31 December 2020, EU law will still apply. This means that, in respect of the divorce itself, an EU regulation known as ‘Brussels IIa’ will apply, and in respect of maintenance provisions, the ‘EU Maintenance Regulation’ will apply. For these purposes ‘maintenance’ essentially means ‘needs-based’ provision and has a fairly wide remit as it can include lump sum payments and property transfers, as well as monthly payments.

Brussels IIa contains provisions to decide a) which countries’ courts have jurisdiction to decide the divorce and b) if more than one country’s courts have jurisdiction, which should take precedence. The latter is determined by a simple rule (‘lis pendens’ also known as ‘first past the post’) which says that the court of the country in which a divorce application is filed first will hear the divorce (this has led to so called ‘forum shopping’ or ‘divorce tourism’ where spouses race to file proceedings in the courts of the country with laws most beneficial to them). Brussels IIa also provides a mechanism for divorce orders made in one EU Member State to be recognised and enforced in another EU Member State.

Like Brussels IIa, the EU Maintenance Regulation includes a mechanism to determine which countries’ courts have jurisdiction to decide maintenance claims. It also includes the first past the post rule explained above and provisions to ensure that any maintenance order made in one EU Member State is recognisable and enforceable in another.

Proceedings commenced after the end of the Brexit transition period

For proceedings commenced after 11pm on 31 December 2020, neither Brussels IIa nor the EU Maintenance Regulation will apply. This means that, from 1 January 2021, the UK’s cooperation with the EU in respect of divorce and finances will be governed by various Hague Conventions (which arguably fall short of the EU regulations that once applied) as well as existing domestic laws that apply in cross-border cases involving non-EU countries.

There are various practical implications for couples (both opposite and same-sex) with EU connections who have decided to divorce now that Brexit is complete.

The first past the post rule will not apply and, instead, the courts of the country the couple has greater connections with will hear the divorce (known as ‘forum non conveniens’). This could lead to long and expensive disputes between parties to determine which country’s courts should decide the divorce/finances before they have even thought about the fundamental issues.

Secondly, there may be problems around the recognition and enforcement of an order made in one country in another country. Practically this could mean that a person whose divorce was granted in one country is unable to remarry in another if it does not recognise the divorce order. It could also mean that an order for maintenance in one country is unenforceable in another, resulting in ex-spouses receiving less than they are entitled to and being unable to redress this easily.

If you need advice on an international family law matter, please contact Daniel Eames, Head of Michelmores’ family team at daniel.eames@michelmores.com.

The decision of the European Court of Justice (“ECJ”) in the landmark case of Maximillian Schrems v Data Protection Commissioner (C-362/14) (the so-called Schrems II decision) declared the EU-US Privacy Shield arrangements between the EU and the USA to be invalid.

The ECJ found that the protections provided for in the Privacy Shield framework, which includes an independent ombudsman mechanism for the handling of complaints relating to the accessing of EU citizens’ personal data by US authorities, are not sufficient to address “the limitations on the protection of personal data arising from the domestic law of the United States on the access and use by US public authorities of such data transferred from the European Union to the United States“. The court had particular concerns about the powers of access that law enforcement and security agencies have in the US and the lack of meaningful legal redress for EU data subjects.

With Privacy Shield declared invalid, businesses would now have to urgently put in place contracts based on the Standard Contractual Clauses (“SCCs”) as ratified by the European Commission. However, the ECJ went further and said that the SCCs themselves may not be sufficient to protect the personal data of EU data subjects when processed in third countries. Businesses will now need to perform due diligence to establish whether the protections that SCCs are designed to provide will be respected in the jurisdictions to which the data is being transferred. This will require additional due diligence and, in particular, consideration of local laws in those jurisdictions.

The European Data Protection Board (“EDPB”) followed this and on 11 November 2020 published guidance to assist controllers and processors in complying with the ECJ’s decision such that businesses relying on SCCs must: (1) conduct a risk assessment of the transfer; and (2) if necessary, implement “supplementary measures” to protect the data in the recipient country.

The guidance includes six key steps:

Step 1: Know your transfers

Verify what types of personal data you are transferring out of the EU. Be particularly conscious of onward transmission by the recipient of that personal data.

Step 2: Identify your transfer tool(s)

This is likely to be the SCCs but could be one of the other safeguards such as Binding Corporate Rules.

Step 3: Assess whether the transfer mechanism is effective in practice

This is a critical step. Businesses will have to ask themselves whether the above arrangements afford a level of protection that is equivalent to that guaranteed in the EU. This will need to consider the rights of access that law enforcement and security agencies have to the personal data and whether they are necessary and proportionate. This is a complex question and the EDPB has published a test based on a set of four “European Essential Guarantees” which must be respected for this test to be met.

If businesses find that the arrangements do not provide sufficient safeguards, they must proceed to Step 4.

As regards the US, the decision in Schrems II makes this a foregone conclusion unless federal laws in the US change – businesses will need to proceed to step 4.

Step 4: Adopt supplementary measures

The EDPB separates these measures into three categories: technical, contractual, or organisational and lists examples of these measures.

The primary focus is on technical measures to prevent access by public authorities using encryption, pseudonymisation or fragmenting data between processors in separate countries. However, there will be circumstances where this is not possible, including where data moves about an international organisation or where data is held “in the clear” in a cloud service provider’s infrastructure. In such circumstances, organisations can only look to contractual and organisational measures and doubt is cast on the sufficiency of such measures on their own.

Step 5: Procedural steps if you identified any supplementary measures

There may be further procedural steps if the supplementary measures identified by an organisation contradict the SCCs. The EDPB may add more requirements to this step in due course.

Step 6: Re-evaluate at appropriate intervals

As organisations may have now gathered, this is a rapidly developing area of law. It should, therefore, go without saying that they should put in place processes for monitoring developments in recipient countries (and indeed in the EU).

For further advice on this topic, please contact Tom Torkar, Partner in Michelmores’ Commercial team.

Tier 1 visas and their successor visa routes are the only categories within which migrants do not need to be “sponsored” by a business holding a sponsor licence. Migrants can submit applications via these routes independently (without sponsorship) in order to allow them to enter and remain in the UK to work and conduct business. They are aimed at “high-value” migrants who have funds available to set up or invest in a business in the UK, graduates with an endorsed business plan and those deemed to have exceptional talent within their field of expertise.

Like many other visa routes, Tier 1 has been subject to a significant overhaul in recent years, with its sub-categories being renamed and revamped and closed to new applicants. A detailed explanation of each of the remaining Tier 1 sub-categories and their successor visa routes are set out below, however, if you would like any more information, please do not hesitate to contact a member of the Immigration team.

Tier 1 (Investor)

This category is for wealthy individuals seeking to make a significant financial investment in the UK. To qualify for this category, applicants will need to be able to show that they have:

• not less than £2 million under their control in a regulated financial institution and disposable in the UK;
• have had the money for two consecutive years or provide detailed documentation of its source; and
• have opened an account with a UK-regulated bank for the purposes of investing not less than £2 million.

The Funds

The money of the applicant must be held either by themselves, or jointly with their spouse or partner. However, such joint owner must provide a declaration that they give the applicant permission to freely use the funds.

The applicant must be able to provide evidence of the funds (for example, bank statements, portfolio reports, or share and bond documents) and, if held outside of the UK, the bank must provide a letter confirming that the funds can be transferred to the UK.

The Regulated Financial Institution

The funds must be held in a regulated financial institution. In practice, individuals will find that UK retail banks are not as enthusiastic in opening accounts with such high deposits from overseas nationals as they might first think. However, the regulated financial institution need not be a bank, and this requirement could instead be satisfied, for example, by a portfolio of investments managed by a wealth management organisation.

The Investment

Not all investments are permitted under the Immigration Rules, and selecting the right investment is absolutely key as failure to do so will jeopardise an individuals’ long term plans to settle or remain in the UK.

What will amount to a ‘qualifying investment’ changed, most recently, in March 2019. From this date, in order to amount to a ‘qualifying investment’, an investment must be share capital or loan capital in an active and trading UK registered company. Investment in UK Government bonds (also known as “Gilts”) is now no longer acceptable.

Qualifying investments made in the 12 months prior to the date of the submission of the individual’s application can be taken into account, provided the investment are confirmed  by a UK regulated financial institution. Otherwise, once the visa is granted, the applicant must invest the full amount of £2 million within 3 months from first entering the UK as a Tier 1 Investor migrant, and this must be maintained for the whole of the remaining leave. There are limited exceptions to this rule, but these will only apply when there are exceptionally compelling reasons for the delay.

Other Requirements?

Under this route, the individual will not need to show that they have any English language ability because, whilst they are allowed to work in the UK should they wish to do so, they should not need to work. Nor will the individual need to satisfy any maintenance requirement because, if they have the required investments, they will be able to support themselves in the UK without requiring assistance from public funds.

However, even if an individual meets all of the conditions of the Tier 1 Investor route, there may be other reasons for the Home Office refusing their application. For example, the individual must be able to evidence where the funds have come from and, if the Home Office have reasonable doubts as to the source of funds (or that they have been acquired through unlawful conduct) then the application is likely to be refused. Furthermore, the individual themselves will be scrutinised. As part of their application, an individual must submit criminal record check which the Home Office can rely on to refuse any application, and their immigration history will also be taken into account. The Home Office will consider whether the character, conduct or associations of any third party providing the funds are such that approval of the application would not be conducive to the public good. The Home Office, therefore, have considerable flexibility in determining whether to grant applications under this route.

The Successful Applicant

This visa will usually be granted for an initial period of 3 years and 4 months. In order to extend the visa, an investor will need to show that they made the qualifying investment within 3 months as stipulated above, and have maintained the investment. After having spent 5 years in the UK, the applicant will be able to apply to settle in the UK (there are also accelerated routes if the applicant invests £5 million or £10 million).

Start Up

This category went live in March 2019 and replaced the “Tier 1 (Graduate-Entrepreneur)” visa (which closed to new applicants in July 2019). It is aimed at early-stage, but high potential, entrepreneurs who are looking to start a business in the UK for the first time. The individual may have already begun setting up their business, but it should not yet have commenced trading.

Applicants will not need to invest any funds into their business to be eligible for this category, but they will need to have an “innovative, viable and scalable” business idea which is supported by an endorsing body.

Innovative: the applicant has a genuine, original business plan that meets new or existing market needs and/or creates a competitive advantage.

Viability: the applicant has, or is actively developing, the necessary skills, knowledge, experience and market awareness to successfully run the business.

Scalability: there is evidence of structured planning and of potential for job creation and growth into national markets.

The endorsing body will also need to be satisfied that the individual will spend the majority of their working time in the UK on developing the business venture.

Endorsing bodies are organisations who have been approved by the Home Office to endorse applicants for the Start Up visa – the Home Office has published a list of authorised endorsing bodies which can be found here, which includes organisations such as universities and incubators. Some endorsing bodies specialise in certain sectors and which body is appropriate to an individual’s application will depend upon the circumstances – applicants should take time to carefully choose the endorsing body which is appropriate for them and their application.

If your application to be endorsed is approved by the endorsing body, you will be issued with a Start-Up visa endorsement letter which must be submitted as part of your visa application.

Other Requirements?

To qualify, an applicant must also meet the following requirements:

1. Age

The applicant must be 18 or older at the time that their application is determined.

2. English language skills

The applicant must be able to either, (1) evidence that they are a citizen of a majority English speaking country; (2) pass an English language test; (3) hold a UK bachelor’s degree or equivalent that was taught in English; or (4) previously have received permission as a migrant in a qualifying category.

3. Maintenance

The applicant must be able to provide evidence of at least £ of personal funds, held for a minimum of 90 consecutive days. Alternatively, the endorsing body may confirm that they have awarded sufficient maintenance funds in the endorsement letter.

The Successful Applicant

If successful, visas are granted for two years. Throughout the two-year period, the individual will be required to stay in contact with their endorsing body (with checkpoints at 6 and 12 months), and the endorsing body will need to be satisfied not only that the individual is continuing to work on their business venture, but that they have also demonstrated reasonable progress in relation to either the original or a new business idea. Failure to do so could result in the curtailment of the individual’s visa.

This visa will not lead to settlement, as the hope is that an applicant will progress to the Innovator category (below).

Innovator

This category replaced the “Tier 1 Entrepreneur” visa in March 2019. It is for experienced business people seeking to establish a business in the UK and who have a minimum of £50,000 available to invest (or have invested) in their business.

As with the Start-Up route, all applicants must be endorsed by an endorsing body, who will need to certify that the business is innovative, viable and scalable. Whilst these requirements are similar to those in the Start-Up category, they are slightly more demanding and require the individual to demonstrate that the business has surpassed that of a Start-Up.

Innovative: the applicant has a genuine, original business plan that meets new or existing market needs and/or creates competitive advantage.

Viable: the applicant has the necessary skills, knowledge, experience and market awareness to successfully run the business.

Scalable: there is evidence of structured planning and of potential for job creation and growth into national and international markets.

Other Requirements?

Similarly to the Start-Up visa, it will not be enough for an individual to simply receive an endorsement and evidence their investment funds. An applicant must also be able to show that they are of the necessary age and have the requisite English language skills and maintenance. The requirements for each of these categories, are the same as the Start-Up visa (as set out above).

Switching from the Start-Up route

If, however, an applicant is switching from the Start-Up route to the Innovator route, some of the requirements above may be waived.

If the individual is applying to continue their same business venture as in their initial application, and they are able to demonstrate significant progress (as judged against their business plan from their previous endorsement), the requirements to (1) have £50,000 to invest, and (2) to be able to demonstrate that the business is innovative, viable and scalable, will be waived.

If an individual has been endorsed by an endorsing body for the purposes of their Start-Up visa, then they will ideally want to be endorsed by that same body for the purposes of their Innovator visa. It is therefore important to plan ahead and ensure that the endorsing body selected for the Start-Up visa is also authorised to endorse applicants for the Innovator visa.

The Successful Applicant

If successful in their application, individuals will be granted a visa for 3 years. As with the Start-Up visa, the individual will need to stay in contact with their endorsing body with checkpoints at 6, 12 and 24 months. The individual will need to satisfy the endorsing body that they are continuing to work on their business venture and have demonstrated reasonable progress in relation to their business idea.

After the 3 year visa has come to an end, the individual will be eligible to apply for settlement. However, in order to be successful in any settlement application, specific criteria will need to be met. As a minimum, the endorsing body will need to be satisfied that the individual has shown significant achievements (as judged against the business plan in their previous endorsement). The individual will also need to demonstrate that the business is registered with Companies House (and that they are listed as a director and/or member), that the business is active and sustainable, and that they have had an active key role in the day-to-day management and development of the business. The individual will then need to identify two additional criteria (from a larger pool) which they can satisfy. For example, this may be that the business has created the equivalent of at least 5 full-time jobs for settled workers, or that the business generated a minimum annual gross revenue of £500,000 in the last full year. Which criteria are appropriate will depend on each individual and their respective business, therefore, if you are looking to settle legal advice should be sought.

Note: Whilst the Entrepreneur visa route has now been closed for new applications, some people will be able to ‘switch’ into it from another visa for the next few years. If you require specific advice on ‘switching’ please do not hesitate to contact a member of the immigration team.

Global Talent

This route replaced and expanded upon the “Exceptional Talent” route on 20 February 2020. It is designed for highly-skilled individuals in the fields of science, humanities, engineering, medicine, digital technology or the arts (including film and television, fashion design and architecture) who will “enrich the United Kingdom’s knowledge, economy and cultural life”.

The route is divided into two types of applicants:

1. “Talent” applications, for those who are already leaders in their field; and
2. “Promise” applicants who show the potential to become leaders in their field.

Each of these categories have slightly different qualifying criteria and the applicant can specify under which category they are applying. However, it will ultimately be for the assessor, who is considering the application, to determine which category is appropriate to the individual.

Similarly to the Start-Up and Innovator routes, any applicant will require endorsement from an organisation recognised by the Home Office. These are The Royal Society, The Royal Academy of Engineering, The British Academy, Arts Council England, TechNation and UK Research and Innovation (UKRI)

The Home Office has issued detailed guidance as to the level of achievement which an individual must show and each recognised organisation has developed sector-specific criteria (upon which they will assess applicants) in the light of this. In each case, the individual will need a substantial body of work and support from experts in their field. For example, as part of their application, they will not only need to submit their application form, CV and personal statement, but will also likely require up to three reference letters and ten supporting documents. This route is particularly competitive and approximately only 50% of applicants will be successfully endorsed, applicants therefore need to be prepared to invest a considerable amount of time in their application to ensure that it is as strong as possible.

If successfully endorsed by a recognised organisation, the individual must then apply to the Home Office for their visa, and it will be for them to make the final decision as to whether to award a visa under this route.

Other Requirements?

Applicants under this route will not need to satisfy any other entry requirements, such as the English language test or the minimum salary threshold.

The Successful Applicant

The visa itself will enable an individual to live and work in the UK for up to 5 years and 4 months. It is considered to be the “golden ticket” of all visas as, once approved, an individual is given a highly flexible permission to live and work in the UK. For example, enabling them to be employed or self-employed, to change jobs without informing the Home Office, to travel abroad and return to the UK for research purposes etc.

In most cases, this visa also provides for fast-track settlement for the individual (and their dependants) after only 3 years, and is therefore a very quick route to settlement.

Visas under Tier 1 and successor visa routes are, perhaps unsurprisingly, particularly sought after and, as with most visas, are not inexpensive – it is therefore crucial to get your application right. If you would like any advice and/or support in submitting an application under Tier 1, please do not hesitate to contact a member of the Immigration team.

UK-based businesses are now having to deal with a raft of issues that come with the UK being a “third country” for the purposes of the EU General Data Protection Regulation 2016 (“the GDPR”).

Organisations looking to transact business in the EU will have to comply with the GDPR if their activities require them to process the personal data of EU data subjects.

One example of an obligation that applies to non-EU states is the requirement under Article 27 of the GDPR to have a European representative where a controller or processor offers goods or services to individuals in the EU or monitors the behaviour of individuals located in the EU.

When the UK is no longer deemed to be an EU-member state at 11pm on 31 December, controllers and processors in the UK are likely to either have to:

• rely on an establishment in the EU (i.e. a physical presence in the EU such as an office); or
• appoint a representative in an EU member state if they wish to continue offering their services anywhere in the EU.

Exceptions                                                                                                                                  

A controller or processor would not need to appoint a representative under the following circumstances:

• they are a public authority; or
• the processing of personal data they are undertaking is occasional and of low risk and does not involve large-scale processing of special category personal data or criminal offence data.

We recommend that legal advice is sought to determine whether there is a requirement to appoint a representative. Where there is such a requirement and the controller or processor fails to do so, the fine under the GDPR is up to the greater of €10million or 2% of the organisation’s total worldwide annual turnover.

Appointing a representative

If it is necessary to appoint a representative in the EU, this representative can only be based in an EU state where some of the individuals whose personal data is being processed are located. For example, if a UK company is processing the personal data of people located in France, Germany and Italy, then its representative can only be based in either France, Germany or Italy, and not in any other EU state.

The representative must be authorised in writing to act on behalf of the UK controller or processor in respect of:

• EU GDPR compliance.
• dealing with any supervisory authority regarding GDPR compliance.
• dealing with data subjects regarding GDPR compliance.

The controller or processor also needs to provide the data subjects with details of the representative. A simple solution is to include this information in a privacy policy. Details must also be easily accessible to supervisory authorities.

A “representative” can be an individual, a company or an organisation (e.g. a law firm). They must be able to represent the controller or processor in relation to their obligations under the GDPR. This requires an understanding of the obligations, as well as having the appropriate measures in place to ensure compliance.

Representative’s obligations

Representatives are required under the GDPR to maintain a record of processing activities. Article 30 of the GDPR sets out the requisite information and states that records must be in writing. These are to be made available to the supervisory authority on request.

It should be noted in particular that the concept of the representative was introduced precisely with the aim of ensuring enforcement of the GDPR against controllers or processors that fall outside the jurisdictional reach of enforcement bodies. To this end, it was the intention to enable enforcers to initiate enforcement action against a representative in the same way as against controllers or processors. Recital 80 and European Data Protection Board Guidance state that in the event of non-compliance by the controller or processor, the designated representative should be subject to enforcement proceedings, including fines. There is little or no explanatory guidance as to the degree to which representatives carry this responsibility.

Representatives will need to consider how they can protect themselves in the event they are subject to enforcement proceedings, whether by means of insurance or through the controller or processor providing an indemnity in the contract of appointment to cover any loss incurred due to their non-compliance.

For further advice on this topic, please contact Tom Torkar, Partner in Michelmores’ Commercial team.

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Optimus currently provides services for MSM’s conveyancing comparison tool which gives customers access to a range of professional quotes for buying, selling or remortgaging property. The new agreement sees Optimus extending this service line to the survey process of a house purchase. Optimus will now deliver and manage this brand new complementary service which is due to launch on the MSM website before the end of the year.

Of the agreement, Alan Young, managing director at Optimus, said:

“We are delighted that MoneySuperMarket has not only extended our existing agreement to manage its conveyancing quotation service for a further three years, but that we have been selected to support them in the expansion of its range of services for homebuyers and owners.

“We look forward to continuing our working partnership with the team into the future.” 

The Optimus’ team was supported by Associate Chloe Vernon-Shore. Chloe said:

“It was a pleasure to advise Optimus on the extension to its agreement with MSM. The expanded service is an exciting and logical next step in the partnership between Optimus and MSM and will be hugely beneficial for MSM’s customers.”

Optimus is part of the Landmark Information Group.

Much has been written recently about the possibility of the law being changed so that it ceases to be necessary to allege “fault” before a divorce can be granted. The law applies equally to same sex marriages as it does to those between opposite sexes.

The grounds for divorce – the present law

As a reminder, as the law is now, a divorce can only be granted if the court is satisfied that the marriage has “irretrievably broken down”.

Proof that a marriage has reached that state has to be on one of five specific grounds which are:

• adultery
• unreasonable behaviour
• desertion
• separation for more than two years, if both parties agree
• separation for more than five years even without agreement.

This piece only deals with claims for divorce on the first stated ground, adultery.

Definition of adultery

Adultery is defined by the law as

“Voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom is married to someone else”.

It follows from this definition that

• Sexual intercourse between two people of the opposite sex who are married to each other cannot be adultery even if they are separated
• Sexual intercourse between two people of the opposite sex who have been married but were subsequently divorced would be adultery if one of them has remarried and remains so (but the adultery would be relevant only to the second marriage)
• Sexual intimacy between one married person and another person of the same sex would not be adultery
• Sexual intercourse between two people of the opposite sex who are not married to each other or anyone else cannot be adultery
• Non-consensual sexual intercourse (usually rape) is not regarded as being adultery.

Implications for same sex couples

Given that adultery can only be grounds for divorce where there has been sexual intercourse between two people of the opposite sex, sexual intimacy between two people of the same sex is not “adultery” for the purposes of obtaining a divorce if one of those people is in a same sex marriage.

It is perhaps bizarre that if one of the two people in a same sex marriage has sexual intercourse with a person of the opposite sex who is not their spouse, then that would fall within the legal definition of adultery and would be grounds for divorce.

Is there an alternative under the present law?

If a marriage between a same sex couple breaks down as a direct consequence of sexual intimacy between one of the parties to that marriage and someone else of the same sex, then, although adultery is not a ground for divorce in those circumstances,  it is likely the aggrieved party could seek a divorce on one of the other grounds for divorce, namely unreasonable behaviour (see above).

Possible changes in the law

The present divorce law was established by the Matrimonial Causes Act 1973, nearly half a century ago. It is interesting to remember that, all those years ago,  sexual relations between two men had only recently been legalised (a sexual relationship between two women was never a criminal offence) and there was no talk of  the creation of same sex unions in the form of civil partnerships, let alone marriages. Much has changed in the meantime in the way people choose to live their lives and society has adopted a different and more accepting attitude to same sex relationships. Even so, when, in 2014, legal marriage between couples of the same sex was introduced, it was regarded as a step too far for parliament to introduce a law saying that sexual intimacy with another same sex partner outside the marriage would be treated in the same way as adultery in a heterosexual marriage.

There has been much talk of possible changes in the law and the introduction of what is sometimes called “no fault” divorce, a change which is supported by many interested organisations and senior members of the judiciary. It seems unrealistic, however, to expect that parliamentary time for such legislation will be found in the immediate future. Until it is changed by parliament, the law remains as stated above.

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our Family team.

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Michelmores’ Corporate team has advised Landmark Analytics on the sale of the website Mouseprice to PropertyHeads Group. Landmark Analytics is part of the Landmark Information Group which is the leading provider of information to the property market and part of Daily Mail and General Trust plc.

Mouseprice is the leading source of UK property market information online used by estate agents, surveyors, property developers and property consultants. It provides comprehensive and up-to-date housing data with the aim of creating a more transparent and thus fairer property market.

The Michelmores team comprised of Henry Taylor. Commenting on the deal, Henry said:

“The Mouseprice website has a strong reputation amongst property professionals for the provision of up-to-date market information. We are very pleased to have advised Landmark Analytics on the strategic sale of Mouseprice and we look forward to seeing how PropertyHeads will shape the future of the website and its well-regarded offering.”

Mark Johnston, CFO of Landmark Information Group said:

“We are delighted to have closed this transaction with PropertyHeads Group enabling Mouseprice to move into the next phase of its development and growth. It was great to work with the Michelmores team. Michelmores were prompt, commercial and pragmatic in their approach which assisted us and PropertyHeads Group to close the transaction in a short timeframe.”

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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.