Calls for a ‘Hillsborough Law’ and increased accountability of public servants have been voiced for many years.  However, despite a number of independent inquiries and investigations, litigation and even draft legislation being prepared, progress towards a statutory duty has been slow.

When Andy Burnham, then MP for Leigh, proposed a statutory duty of candour for public authorities back in 2017, he no doubt hoped that progress might now have been made.

His draft Public Authority (Accountability) Bill (also known as Hillsborough Law), prompted by his involvement with the Hillsborough families, would have required public authorities to be open, transparent and honest and to admit responsibility following public disaster and mass casualty incidents, potentially even before court proceedings had been intimated.

That Bill was put on hold following the snap General Election in May 2017, and the recent Conservative government stepped back from introducing a statutory duty, establishing instead the Hillsborough Charter.

However, the King’s Speech has confirmed that the current Labour government intends to proceed with the introduction onto the statute books of a Hillsborough Law. At his first Labour Party conference as Prime Minister, Sir Kier Starmer, also promised that a ‘Hillsborough law’ will be introduced in Parliament before the next anniversary of the 1989 football stadium tragedy in April 2025.

What will Hillsborough Law say?

There is currently no draft legislation before Parliament, but it is likely that any future wording will closely mirror the above-mentioned Public Authority (Accountability) Bill. That draft legislation proposed establishing a statutory duty of candour, requiring public authorities, public servants and officials to:

• act at all times in the public interest and with transparency, candour and frankness, and to detail the measures taken to further to these objectives in a published Code of Ethics;
• assist court proceedings, official inquiries and investigations where their own acts or omissions are (or may be) relevant; and
• disclose information which may change the scope of any proceedings, inquiry or investigation.

The draft Bill proposed that ‘public authority’ be given the wide-ranging and inclusive definition: “any national or local government department… institution or agency engaged in functions of a public nature… [this] includes entities with a private structure but which are majority owned by public funds.”

To ensure compliance with the proposed duties, it was suggested that new offences be created for failure to discharge the duty, punishable by a fine and/ or custodial sentence.

Offences would also be committed by public servants, if they intentionally or recklessly misled the general public, the media or proceedings. In addition to an organisation’s offending, individuals would also be liable if by their acts or omissions they hindered their authority’s compliance with its the duty.

Parity of funding

Hillsborough Law also suggests that bereaved families and ‘core participants’ at inquiries and inquests be entitled to publicly-funded legal assistance and representation at the same level, or in proportion to, the resources available to the public authority, to ensure a parity of arms.

What could this achieve?

When introducing the initial draft of what is now the Hillsborough Law back in 2017, Andy Burnham summarised the motivation as “simple”:

“It [is]…to protect other families from going through what the Hillsborough families went through and from a similar miscarriage of justice. It empowers victims to secure disclosure of crucial information and prevent public authorities from lying to them or hiding the truth by making that an imprisonable offence… it creates a level legal playing field at inquests for bereaved families so that finally inquests become what they should always be – a vehicle to get to the truth.”

Hurdles to implementation

However laudable the aims may be of seeking to level the playing field between bereaved families and well-funded public authorities during investigations into mass casualty events, there are serious and fundamental procedural questions which need to be addressed before for any such duty can achieve its intended objective.

Primarily, it remains unclear exactly what is intended by ‘candour’ other than a general duty to be open and honest. In any event there is an inherent tension with a potential defendant’s right to silence: where someone asserts that right, they are unlikely to be guilty of lacking candour – and to hold otherwise would fundamentally undermine well established principles of criminal justice. However, the idea that any assertion of the right of silence should be subject to third party scrutiny or assessment of reasonableness is seismic to say the least.

Another difficulty is that until draft legislation is available for comment, proposals for a Hillsborough Law leaves open to interpretation the definition of a public tragedy. The answer may be that the public will know a tragedy when they see one, but the definition cannot simply be determined by the number of people injured or who have died. To set any such arbitrary distinction risks severe unfairness and injustice.  In addition, any pledge in terms of activation of an emergency plan and deployment of resources to support the bereaved is perhaps only a restatement of the current emergency services framework and is not really an extension of the existing procedures already in place.

The proposal to extend legal assistance to bereaved families is likely to receive widespread support. However, the very significant cuts to the legal aid budget in recent years and continuing austerity generally begs the question: where will the money come from?

Interestingly, the 2017 Bill proposed a limit on the legal spend of public authorities in responding to inquests and inquiries, the logic being that the requirement for them to ‘come clean’ at the outset will reduce the length of investigations and thereby ensure costs savings for all. Any such limits may however fetter the ability of public authorities to fully and properly articulate their case when responding to investigations.

Also, it is often extremely difficult at the outset of an inquiry or inquest to estimate the overall costs that may be incurred. Were a cap to be introduced in responding to any such proceedings, the basis for this would need to be carefully considered, to ensure that all parties are capable of achieving full and proper advice and representation.

In addition, of the organisations which have to date voluntarily accepted responsibility in the immediate aftermath of adverse incidents, there has been little acknowledgement of their acceptance or explicit reduction in fine imposed.

Whilst there may be a very strong moral imperative for public servants to be open and honest following tragedies, absent a ‘stick’ with which to enforce compliance and punish breach, there remains a question as to how compliance will – or even can – be enforced.

However, there does not appear to be any comparable or tangible ‘carrot.’ In the absence of an acknowledged benefit or (financial) incentive for being candid, a potential defendant to further investigation is likely to consider themselves caught between a rock and a hard place.

Conclusion

Whilst it now appears that progress will be made towards establishing a statutory Hillsborough Law, which will be welcomed by many and may be seen as going some way towards addressing the concerns and queries raised by the families following that disaster and subsequent litigation, there are equally fundamental questions and clarifications which are required to be openly debated before any proposed legislation can be enacted.

The law does not operate in a vacuum and were the Hillsborough Law to be enacted in the terms previously suggested in 2017, this would cause significant tension within the criminal justice system and simply could not be imposed unilaterally without detailed and considered consideration of parallel issues which would be naturally flow from the proposals.

If Hillsborough Law is to become a reality then there needs to be careful consideration of the potential, but significant, implications to ensure that there is genuinely fairness to all parties concerned.

Care Quality Commission (CQC) inspections have fallen to their second lowest level in almost 10 years, as the day-to-day regulatory function of the public body continues to lag behind pre-pandemic activity.

According to new data, physical inspections by the CQC have dropped from a peak of almost 23,000 in 2016, to just less than 8,000 in 2023 – a marginal increase on 2020 figures, which showed that 7,711 inspections were carried out during the height of the COVID-19 pandemic.

Of the 107 inspections with an overall rating of ‘Requires Improvement’ or ‘Inadequate’, only four have resulted in completed and published full Quality Statement reviews.

The fall in inspections also coincides with the commencement of the CQC’s new operating model, which may account for some of the reduction.

Bill Dunkerley, regulatory associate partner at Pannone Corporate, which conducted the annual research under the Freedom of Information Act, commented: “Despite the fanfare and extensive publications to promote its introduction, the CQC’s new regulatory model has had something of an inauspicious start.

“The regulator was hopeful that its new approach would enable it to be more dynamic in its assessment of services, and permit more contemporaneous data collection to take place. Far from becoming a more proactive, dynamic and responsive agency, as the data shows, the CQC is becoming more sedentary in its approach.”

The research shows that despite an increase in the number of concerns being received by the CQC, the total number of regulatory actions taken by the Commission has fallen year-on-year and currently sits at around half of pre-lockdown levels (10,618 in 2019; 5,783 in 2023). Although there was a clear drop-off in the number of regulatory actions in 2020, figures have remained consistently low since then, compared with upwards of 15,000 each year in the period following the CQC’s receipt of enhanced powers in 2015.

In addition, the use of warning notices has dropped significantly, from a peak figure of just over 1,500 during 2015 to less than 600 in 2023. Despite a flurry of prosecutions over the last few years, the annual figures also show that prosecutions are decreasing rapidly. There are currently 121 open criminal investigations concerning specific incidents or unregistered providers.

Dunkerley added: “To be an effective regulator going forwards, and one with real teeth, the CQC has to combine its new inspection and assessment framework with meaningful regulatory activity. Whilst to date, the CQC could have been seen to be relatively proactive – undertaking inspections of providers at fairly reasonable intervals – an inherent danger within its ‘data-driven’ approach is that this may result in it becoming reactive, as recent data perhaps tends to indicate.

“At the end of the day, the CQC’s new regulatory model does not change its investigatory and enforcement powers. The latest figures suggest that either the CQC is becoming less active, or is achieving compliance by providers without the need to resort to use of its enforcement powers.”

The various provisions of the Building Safety Act 2022 continue to be implemented and come into force.  Whilst there has already been a significant volume of commentary and analysis regarding the genesis of the Act, and the various additional duties created, what impact will the Act actually have on a day-to-day basis for those who undertake work on, and are responsible for, the management and operation of the built environment?

Who is caught by the Act?

The Act is of relevance to all those involved in the entire lifespan of buildings, from design and planning through to construction and ongoing occupation, with a particular emphasis on those involved in the management of buildings which are deemed to be ‘higher risk’ (being over 18m in height and which contain at least two residential units).

One of the key criticisms flowing from the independent review which was undertaken following the Grenfell Tower tragedy was that there was generally no accountability or continuity of oversight relating to the built environment. The review’s impression was that the existing duties were seen as a ‘race to the bottom’, with those responsible for each stage of a building’s lifespan operating in a silo and without reference to those who may be involved at later stages of a building’s management.

The Building Safety Act seeks to do away with this attitude and creates what is referred to as a golden thread of information, which persists throughout a building’s lifetime, to ensure that crucial information is preserved and accessible to those who require it.  Contractors will need to be proactive in this regard, and will be expected to positively contribute to this core repository.

Central to the Act’s objectives is the creation of the new statutory role of ‘accountable person,’ which, in a nutshell, will attach to those who are in any way responsible for the management of building safety risks. In practical terms this means that those who are responsible for the repair and ongoing safety in higher risk properties will be fixed with additional duties.  Whilst many of the obligations are perhaps a matter of common sense and may duplicate existing best practice, the Act now places these on a statutory footing, with consequences for non-compliance.

What does this mean in practice?

The nature of regulatory compliance is that it only ever tends to increase in volume and the Building Safety Act is no exception in this regard.

Once fully embedded, the Act is likely to lead to:

1. Increased administrative burden

There will be an increase in the administrative burden by those involved with the management of higher risk buildings, especially those who are deemed to be an accountable person (‘AP’).

For example, an AP, or where there is more than one AP in respect of a building, the Principal AP, must:

• ensure that a building caught by the Act is appropriately registered with the Building Safety Regulator before it is occupied
• assess the safety risks and provision in respect of the parts of the building for which they are responsible, both on occupation and at regular intervals thereafter, as well as at any time when there is reason to suspect that the existing assessment is no longer valid.
• take reasonable steps to prevent a safety risk from materialising and reduce the severity of any incident resulting from such a risk
• apply for a Building Assessment Certificate for a registered building within 28 days of being asked to do so by the Building Safety Regulator
• prepare of a safety case report for their building
• report certain information about building safety risks in occupied high risk buildings to the Building Safety Regulator; and
• prepare a strategy for promoting the participation of residents in building safety decisions.

Whilst these duties are not in themselves novel, in that they mirror similar obligations under existing health and safety and fire safety legislation, their discharge is now compulsory in respect of building safety management.

An initial impact assessment undertaken prior to enactment of the Act estimated that costs associated with the additional management duties may be in the region of nearly £3 billion over the first decade, with estimated annual costs associated with maintenance of the Golden Thread being in the region of £600 million.

1. Emphasis on cooperation

Effective implementation of the Building Safety Act will require significant cooperation and coordination between those involved in building safety.

For example, one area where there is likely to be overlap is in respect of fire safety.  Definitions as to whom the relevant duties attach differ slightly between the Act and Fire Safety Order, and in practice the roles may be undertaken by the same or distinct persons. In any event there needs to be a clear delineation and understanding between all parties as to who is responsible for which aspects of a building’s occupation and how information will be shared between them.

The duties imposed by the Fire Safety Order have themselves been expanded, with external walls and fire doors to individual flats now being included within the definition of communal areas, and thereby falling within the responsibility of the Responsible Person to include in the building’s fire risk assessment.

• Contractual implications

Given all of the above, and the importance of the objectives to be achieved, it is crucial that the new prescriptive regime is adequately reflected within contractual documentation. For example, those who work on buildings but who may not be the AP, should revisit their contractual documentation to ensure that it is compliant with the new statutory apportionment of responsibilities. Parties need to be mindful that they do not inadvertently, by their contractual terms or actions generally, assume responsibility.

It may also be prudent for those involved in the maintenance of higher risk buildings to include express confirmation that any works undertaken will not affect building safety or emergency plans.

Pending the introduction of updated standard form contracts, all contractors should seek express and unambiguous clarification as to how the Act will impact their work, and clear understanding as to apportionment of relevant responsibility.

Such apportionment of roles is not novel in itself, and has been required for many years as a result of the Construction (Design and Management) Regulations, but clear delineation of roles will help all to understand the scope and extent of their responsibilities and how these contribute to the overall objectives to be achieved. Unlike those Regulations, however, the new golden thread requires much more information to be provided, with the emphasis on recording and sharing that information rather than simply maintaining a hard copy.

1. Delays

Whilst ensuring continuity of knowledge and safety, the Act is liable to result in delays to construction projects, whilst relevant approvals and registrations are awaited. In the event of any such delay, or rejection of approval, parties will need to make provision as to who is liable for any consequential costs, cash flow issues and supply chain issues.

1. Construction products

The Act intends that all construction products made available on the UK market should be regulated, and the Building Safety Regulator has extensive powers in this regard, including to require construction products to be safe and to create a statutory list of ‘safety critical’ construction products.

The Act also introduces new liabilities on materials producers for defective products, which will operate in addition to existing product safety regimes.

All those involved in the supply and use of construction products will need to be mindful of any relevant decisions or categorisations of products, and take steps to ensure that any products falling foul are not used on site.

Enforcement

All of the above obligations, duties and requirements are to be overseen by the Building Safety Regulator, which has been endowed with criminal investigatory and enforcement powers in the event of breach by a dutyholder.

It has been estimated that the costs of enforcement could be in excess of £12 million, with costs associated with reviews and appeals serving to increase that figure.

There has been significant criticism of the Building Safety Regulator to date and whether it becomes a Regulator with real teeth or not remains to be seen.

Conclusion

Whilst the maintenance and promotion of building safety is to be welcomed, all those who are involved in the design, construction, management or maintenance of the built environment must understand their specific role, and by extension what additional responsibilities they may have.

Although there has been criticism as to the length of time it has taken the Building Safety Act to come fully into force since the Grenfell Tower fire in 2017, and residual questions remain as to how the additional funding will be sourced, the direction of travel is clear and businesses need to be alive to how they will be impacted and the practical consequences for them.

Although the media interest surrounding the Awaab Ishak inquest focussed on the presence of damp and mould, there were other matters arising in evidence in that case which have not been touched upon as extensively by the press. That is not to minimise the possible risks that may be associated with extensive exposure to mould, but rather to put in context that there are many other hazards and concerns which can be associated with domestic premises, all of which may require investment and attention from the property owner.

The Social Housing (Regulation) Act 2023, which was already in draft form prior to the Awaab Ishak inquest, was amended in light of the Coroner’s conclusion in that case to include a specific obligation on social housing landlords to investigate and repair, within a specified timescale, “prescribed hazards,“ which were reported from their housing stock

These additional obligations were proposed to form part of tenancy agreements, and were intended to provide tenants with an enhanced course of redress against landlords who were considered to be failing in their maintenance duties.

The Government has now launched a consultation which considers proposals for the full implementation of Awaab’s Law.

What are the proposals?

The consultation offers seven proposals for comment, being:

1. If a registered provider is made aware of a potential hazard in a social home, they must investigate within 14 calendar days to ascertain if there is a hazard.
2. Within 14 calendar days of being made aware that there is a potential hazard in a social home, the registered provider must provide a written summary of findings to the resident that includes details of any hazard identified and (if applicable) next steps, including an anticipated timeline for repair and a schedule of works.

Whilst the consultation makes clear that physical visits to properties may not always be necessary, where remote viewing/ information sharing is possible, this requirement does imply and require a certain level of knowledge by the investigator to understand the potential hazards, and make a determination as to their severity.

3. If the investigation indicates that a reported hazard poses a significant risk to the health or safety of the resident, the registered provider must begin repair works within 7 calendar days of the written summary being issued.

In determining whether a hazard poses a risk to health and safety, the consultation encourages landlords to consider any specific vulnerabilities of residents of which they are aware, with the overall approach being one of proactivity. Supportive medical evidence will not be required to determine the risk.

4. The registered provider must satisfactorily complete repair works within a reasonable time period. The resident should be informed of this time period and their needs should be considered.

The explanatory notes which accompany the consultation detail that specific timescales for completion of works should reflect the nature of the problem, as well as being proportionate to the scale of repair as well as taking into account the needs of the residents.

5. The registered provider must action emergency repairs as soon as practicable and, in any event, within 24 hours.

The explanatory notes confirm that ‘emergency repairs’ are those which present a significant and imminent risk of harm.

6. In the event that the investigation finds a hazard that poses a significant, or a significant and imminent, risk of harm or danger, and the property cannot be made safe within the specified timescales for Awaab’s Law, the registered provider must offer to arrange for the occupant(s) to stay in suitable alternative accommodation until it is safe to return.
7. The registered provider will be expected to keep clear records of all attempts to comply with the proposals, including records of all correspondence with the resident(s) and any contractors. If the registered provider makes all reasonable attempts to comply with the timescales but is unable to for reasons genuinely beyond their control, they will be expected to provide a record of the reasons that prevented them from doing so.

Overview of costs

The Government is unable to estimate the net additional costs of the proposals however they are considered likely to be small, on the basis that aside from specifying the response time, Awaab’s Law goes no further than re-stating landlords existing obligations.

The consultation itself states:

Social landlords already have a responsibility to maintain their homes to meet the Decent Homes Standard… to remedy disrepair, and to maintain homes so that they are fit for human habitation. To be fit for human habitation a home must be safe, healthy and free from things that could cause you or anyone else in your household serious harm. Therefore, the duty to make repairs to reported hazards is not a new burden on landlords, and the costs associated with the investigation and repair timescales are likely to be minimal, as the additional burden is the speed at which repairs need to be responded to, not the repairs themselves.

Familiarisation costs for year one are estimated in the region of £1.6 million, with the costs associated with the provision of a written summary of hazard findings anticipated in the region of £154 million.

The key driver behind the consultation is for social housing landlords to take faster action in responding to hazards within a home that are significantly impacting a resident’s health and safety. The consultation goes on to consider that the remediation of hazards will serve to stop the deterioration of these issues and may even improve mental health and wellbeing, on the basis that, “remedying disrepair in a timely fashion means residents feel their complaints are taken seriously, their pride of place is heightened, and they will feel happier to be at home. These health improvements are likely to result in a reduced burden on the NHS, with fewer housing relating issues resulting in residents requiring medical attention. There are also likely to be wider societal benefits of reducing health and safety hazards in homes, such as reduced instances of lost productivity due to ill health.”

Commentary

Awaab’s Law, and the proposals currently open for consultation, were introduced following the media frenzy flowing from the November 2022 inquest. However, without more long-term investment and increased funding streams, social housing providers are likely to continue to be placed in an impossible position. In the absence of a blank cheque, it is a difficulty that is not easily resolved.

Whilst the objectives are laudable, as the consultation itself accepts, the proposals are not novel in themselves and re-state existing obligations. What is liable to change however is the time within which those activities need to be put in hand. This may present an immediate logistical problem for many, especially smaller organisations which may have fewer/ more limited resources, and fewer bodies on the ground to put in hand the required attendances when required.

On the resources issue, although the government does not anticipate significant costs, those funds still need to be sourced, and any monies incurred as part of the expected ‘familiarisation’ period will not be available for other projects, such as the construction of new build homes, or upgrade of existing stock. Without downplaying the seriousness of health and safety risks, the remediation of issues in one property may result in a net loss for the stock as a whole if funds are not otherwise available – for example, to fund replacement fittings or new build projects.

Awaab’s Law is also restricted to the social housing sector and does not affect private sector landlords. The occurrence of mould – and other residential hazards – is not exclusive to the social housing sector, yet the proposals are likely to result in an imbalance between the private and the social housing sector, with the latter benefitting from generally faster remediation.

Additionally, tenants owe a duty to behave in a ‘tenant-like manner’ during the life of their lease. However, the current proposals risk severing that responsibility and shifting the responsible burden onto already over-stretched and under-funded social landlords and may, at their extreme, require a landlord to repair a hazard regardless of their genesis or the manner in which they have arisen.

Calls for a ‘Hillsborough Law’ and increased accountability of public servants have been voiced for many years.  However, despite a number of independent inquiries and investigations, litigation and even draft legislation being prepared, it appears that any such law may now essentially be stagnant.

Whilst the draft Public Accountability Bill (also known as the Hillsborough Law) sought to establish a statutory duty of candour – being an obligation on public servants to be open, transparent and honest following public disasters – these proposals will not now proceed any further, at least not in the current session of Parliament.  Rather than enact legislation and subject it to parliamentary scrutiny, the Government has, instead, indicated it will sign a comparable Charter.

What does the Charter say?

The Charter responds to Bishop James Jones’ previous report published in 2017, in which he identified 25 points of learning.  One of the key recommendations within this was the creation of a Charter for families bereaved through public tragedy.  This Charter seeks to ensure that the lessons of the Hillsborough disaster and its aftermath, are learned, to prevent those who are affected by public tragedy in the future from having the same experience.

The Charter lists six key points as to how the Government is committed to acting in practice, within the confines of the existing rules, regulations and codes.  The six rules are:

1. In the event of a public tragedy activate its emergency plan and deploy its resources to rescue victims, to support the bereaved and to protect the vulnerable.
2. Place the public interest above out own reputation.
3. Approach forms of public scrutiny, including public inquiries and inquests with candour, in an open, honest and transparent way, making full disclosure of relevant documents, material and facts.  Our objective is to assist the search for the truth.  We accept that we should learn from the findings of external scrutiny and from past mistakes.
4. Avoid seeking to defend the indefensible, or to dismiss or disparage those who may have suffered where we have fallen short.
5. Ensure all members of staff treat members of the public and each other with mutual respect and courtesy.  Where we fall short, we should apologise straight forwardly and genuinely.
6. Recognise that we are accountable and open to challenge.  We will ensure that processes are in place to allow the public to hold us to account for the work we do and the way in which we do it.  We do not knowingly mislead the public or the media.

Hurdles to implementation

However, far from addressing the concerns highlighted by those affected by the Hillsborough tragedy, as well as other public disasters, the Charter is considered by those who are intended to benefit from it, as falling far short of the mark. Not only does a Charter lack the weight of its statutory counterparts, but in addition there are serious and fundamental procedural questions which need to be addressed before for any such duty can achieve its intended aims.

Primarily, it remains unclear exactly what is intended by ‘candour’ other than a general duty to be open and honest. In any event there is an inherent tension with a potential defendant’s right to silence: where someone asserts that right, they are unlikely to be guilty of lacking candour – and to hold otherwise would fundamentally undermine well established principles of criminal justice. However, the idea that any assertion of the right of silence should be subject to third party scrutiny or assessment of reasonableness is seismic to say the least.

Another difficulty with the Charter is that it leaves open to interpretation the definition of a public tragedy. The answer may be that the public will know a tragedy when they see one, but the definition cannot simply be determined by the number of people injured or who have died. To set any such arbitrary distinction risks severe unfairness and injustice.  In addition, the Government’s pledge to activate its emergency plan and deploy resources to rescue victims and support the bereaved is perhaps only a restatement of the current emergency services framework and is not really an extension of the existing procedures already in place.

In respect of the Charter’s pledge regarding public inquiries and inquests, the granular detail which supports this pledge states, “full disclosure may not always be possible in relation to broader scrutiny, or enquiries…in signing the Charter, the Government is not intending to widen the disclosure obligations which currently apply, or to narrow the well-established exceptions to those obligations”.

One of the issues which arose from the various inquiries into Hillsborough, was the potential withholding of information and lack of disclosure.  However, the Charter does no more than to simply re-state the current framework regarding disclosure and expressly does not seek to expand the current regime.  It is unclear, therefore, how this pledge marks any form of change than what has already gone before.

In addition, whilst there may be a very strong moral imperative for public servants to be open and honest following tragedies, absent a ‘stick’ with which to enforce compliance and punish breach, there remains a question as to how compliance will – or even can – be enforced.

However, there does not appear to be any comparable or tangible ‘carrot.’ In the absence of an acknowledged benefit or (financial) incentive for being candid, a potential defendant to further investigation is likely to consider themselves caught between a rock and a hard place.

Conclusion

Whilst a Hillsborough Charter is broadly to be welcomed and may be seen to go some way towards addressing the concerns and queries raised by the families following that disaster and subsequent litigation, there is also much commentary that it simply falls far short of the expected mark and does not go as far as anticipated.

As the Charter does not have statutory force, it is not clear what the consequences of breach may be for us who act in contravention of it.  Possibly not much.

In parallel with the Hillsborough Charter, the police Ethical Code of Conduct now includes a duty of candour, but aside from any disciplinary proceedings arising in respect of individual officers, it is not clear how the pledges are to be enforced.  By its nature, the criminalisation of particular activities rests in the procedural ability to impose a penalty for non-compliance  However, in the absence of statutory footing for the Hillsborough Charter, there is no stick and it is difficult to see how breach, or non-compliance can be enforced.

That being said, the law does not operate in a vacuum and were the Hillsborough law to be enacted in the terms previously suggested, this would potentially cause significant tension within the criminal justice system and simply could not be imposed unilaterally without detailed and considered consideration of parallel issues which would be affected.

The Labour Party have indicated, in its manifesto, that it will reconsider a manifesto pledge around the Hillsborough law and the results of a general election in 2024 remain to be seen.  Whilst it may be the case that any future Labour Government considers that the Hillsborough Charter, as exists, is sufficient, this is unlikely to satisfy those who have been personally affected by the Hillsborough law and who do not consider that the Charter has, in fact, gone far enough.

The draft wording of the Terrorism (Protection of Premises) Draft Bill (also known as ‘Martyn’s Law’) continues to work its way through Parliament, and following its inclusion in the King’s Speech.

Whilst some aspects of the Bill have recently been subject to scrutiny and criticism, the fundamental purpose of the draft is to be welcomed.

Although identification of ‘lone wolf’ individuals, their methodology and where and when they may attack are often difficult to predict, such ‘low complexity’ attacks are no less deadly than those committed by organised terrorist groups and it is only correct that all businesses prepare for the unthinkable.

The draft Bill, also known as Martyn’s Law in honour of Martyn Hett, who was killed during the 2017 Manchester Arena attack, seeks to address this issue by imposing proactive security measures on organisations that may be subject to terrorist attack.  Specifically, the Bill requires those responsible for certain public premises to expressly consider the risk from terrorism and implement reasonably practicable and proportionate mitigating measures in response. The Bill also proposes to establish an inspection and enforcement regime, to ensure compliance with the legislation once it comes into force.

Which premises are caught?

The definition of ‘qualifying public premises’ is wide and includes premises used for:

• retail purposes
• hospitality and entertainment
• sporting grounds
• exhibition halls
• hospitals
• transport terminals; and
• childcare and educational facilities.

To be caught by the definition, and the additional duties imposed, the public must have access to the premises which themselves must have a capacity for 100 or more individuals.

Certain ‘qualifying public events’ are also caught by the provisions, which includes events held at premises which are not qualifying public premises, but to which the public have access and have capacity for 800 or more individuals.

What is the duty that is imposed?

Different duties apply depending on the size of the qualifying premises, with those having a public capacity of 800 or more individuals being classed as an ‘enhanced duty premises.’ Other public premises are subject to a ‘standard duty’.

In either scenario, the duties are imposed on the person (or persons) who has control of the premises for their relevant use, or the qualifying public event.

In addition to being obliged to register the premises, the responsible person must also:

• ensure that a standard terrorism evaluation of the premises has been completed
• revise that evaluation as required and ensure it is kept up to date
• make available a copy of the current evaluation to each individual who uses the premises as a place of work; and
• provide the regulator with a copy, on request.

A standard evaluation must be reviewed every time there is a material change to the premises or its use, as well as within 12 months of the previous review.

The evaluation should include information as to the:

• types of terrorism most likely to occur at or in the immediate vicinity of the premises
• the measures in place in relation to the premises that might be expected to reduce the risk of acts of terrorism of those types occurring at or in the immediate vicinity of the premises
• the measures in place in relation to the premises that might be expected to reduce the risk of physical harm to individuals if acts of terrorism of those types were to occur at, or in the immediate vicinity of, the premises
• the procedures to be followed if acts of terrorism were to occur at, or in the immediate vicinity of, the premises; and
• the ways in which individuals who use the premises as a place of work will be made aware of the standard terrorism evaluation of the premises, or relevant information in the evaluation.

Where the enhanced duty applies, the responsible person must also prepare a terrorism risk assessment at least three months before the date of the event taking place. The draft Bill explains that a terrorism risk assessment is an assessment of:

• the types of acts of terrorism most likely to occur at, or in the immediate vicinity of, the premises or event
• the reasonably practicable measures that might be expected to reduce the risk of acts of terrorism of those types occurring at, or in the immediate vicinity of, the premises or event; and
• the reasonably practicable measures that might be expected to reduce the risk of physical harm to individuals if acts of terrorism of those types were to occur at, or in the immediate vicinity of, the premises or event.

What are the responsibilities?

The draft Bill serves to impose additional duties on those responsible for qualifying premises.

For example, Martyn’s Law if enacted in its current form will oblige those responsible to provide terrorism protection training, and to implement prescribed security measures and plans in the event of an attack.

Enforcement

Obligations under the Bill will be monitored and enforced by local authorities, using a ‘reasonably practicable’ test to assess what is proportionate in any given situation.

If contraventions are identified then the Bill provides for notices to be served, as well as the imposition of financial penalties. Of note, the maximum penalty in respect of standard duty premises is £10,000, but for those subject to the enhanced duty is the greater of £18 million, or 5% of qualifying global revenue.

Failure to comply with a notice which has been served will be an offence, being punishable on conviction by up to two years custody and/ or an unlimited fine. In addition, individuals within an organisation may also be guilty of an offence if the corporate’s offending is shown to have been committed with their consent, connivance or neglect.

Conclusion

The aims of the Bill are commendable, and have been prepared following consultation with various parties in the aftermath of the Manchester Arena attack in 2017. The specific and deliberate focus on the risk of terrorism is to be welcomed and it is hoped that the Bill is able to complete its passage through Parliament as soon as possible.

However, the proposals are not in themselves novel and largely reflect and mirror existing duties imposed on organisations and businesses in respect of day-to-day health and safety management. Where this legislation differs however is that it prescribes the risk (terrorism) to be expressly considered and requires relevant organisations to proactively prepare in anticipation of that risk materialising.

The additional inspection and enforcement responsibilities come at a time when local authorities are financially stretched and it will be interesting to understand from where the additional funding and resources to achieve this aim will be sourced. For example, the impact assessment which accompanies the draft legislation estimates that the total set-up and on-going cost of Martyn’s Law to be between £1.1 billion and £6.3 billion.

In addition, criticism has been levelled at both the arbitrary capacity cut-off figures – given that acts of terrorism do not usually abide by such distinctions – as well as the potentially disproportionate cost which will be imposed on small and medium-sized venues. Whilst the Bill, if enacted, will certainly increase provider knowledge, it remains unclear how it will provide a benefit to venues, given the random and often unforeseeable nature of terrorist activities.

To discuss this in more detail, contact associate partner in Pannone Corporate’s regulatory team, Bill Dunkerley.

Following Pannone Corporate’s Freedom of Information Act request to the Care Quality Commission (CQC), regulatory associate partner, Bill Dunkerley, looks in more detail at what the statistics tell us and asks: what next for the CQC? Read more here:

What next for the CQC

Social Housing (Regulation) Act: Awaab’s Law in practice

The Social Housing (Regulation) Act received Royal Assent in July 2023, and makes provision regarding the regulation of social housing and the terms of approved schemes for investigation of housing complaints. It also formally introduces onto the statute books ‘Awaab’s Law’.

What is Awaab’s Law?

The Act is wide-ranging in the changes it introduces and includes: new powers for the Housing Ombudsman to issue guidance and a code of practice, and ability to order providers to self-assess their performance against such guidance; additional powers to the Social Housing Regulator; and a requirement that social housing managers have a recognised professional qualification.

In addition, the Act obliges (and subject to the enactment of future secondary legislation) social housing landlords to investigate and repair, within a specified timescale, “prescribed hazards“ which are reported from their housing stock, and may even in due course impose a duty to re-house tenants where a home cannot be made safe. These additional obligations will form part of tenancy agreements, and are intended to provide tenants with an enhanced course of redress against landlords who are considered to be failing in their maintenance duties.

This specific amendment to the Act followed the death of Awaab Ishak in December 2020, and the subsequent inquest which concluded in November 2022. Awaab died following exposure to environmental mould in his parent’s home and subsequent sub-optimal medical treatment.

After having heard all the evidence, the Coroner had a number of concerns arising from the evidence generally, including the fact that the 2006 Government document, ‘A Decent Home: Definition and Guidance for Implementation,’ did not give any consideration to the issues of damp and mould, nor did it provide any guidance as to the need for a property to be adequately ventilated (which is a contributory factor to mould growth). In light of her concerns, the Coroner issued a Prevention of Future Deaths Report to the Secretary of State for Levelling Up, Housing and Communities, as well as the Secretary of State for Health and Social Care, requiring them to outline the actions their departments would take to address this issue, as well as the others highlighted, and prevent a repeat of similar circumstances arising in the future.

In providing a joint response to the Coroner’s invite, the Secretaries of State confirmed that an amendment to the already existing Social Housing (Regulation) Bill would be tabled, to specify time limits within which landlords must investigate hazards and then act upon them where there were health concerns. These amendments subsequently became known as ‘Awaab’s Law’.

Whilst these measures, on the face of it, are extensive the proposals are not without their practical difficulties.

What impact will the Act have in practice?

To coincide with the Act’s progress prior to receiving Royal Assent, and as part of its “drive to make every home a decent home,” the Government earlier this year announced additional funding of £30 million for Greater Manchester and the West Midlands, to start making improvements in the quality of social housing.

Despite the allocation of additional funding, in reality this amount is unlikely to make much difference, once apportioned between multiple social housing providers and their individual properties.

Many social housing providers are established on a not-for-profit basis, with income being derived almost exclusively from rents supplemented by some public funding. Any excess is usually re-invested into the organisation for the benefit of tenants. Despite the headline-grabbing funding which is to be made available, without more long-term investment and increased funding streams, social housing providers are likely to continue to be placed in an impossible position – income allocated to address a known issue, will be unavailable for other projects, such as the funding of new builds. This may ultimately prejudice the tenants themselves, being those for whose benefit social housing is provided.

Likewise, it is not clear how the additional duties imposed by the Act are to be funded in the future. It was well-publicised following the inquest into the death of Awaab Ishak that Rochdale Boroughwide Housing’s funding to build new homes was suspended until it was able to prove that it was a responsible landlord. Going forwards, it is perhaps difficult to understand how such measures benefit tenants, who rely on the continued ability of social housing providers to meet their needs and to potentially re-house them were hazards cannot be rectified.

Whilst the objectives of the Act are to be welcomed, and it is only right that those who own and manage property have an obligation to ensure that it remains fit for purpose, the new provisions also require appreciation of hazards.

The circumstances of Awaab’s death served to shine a spotlight on the dangers of prolonged exposure to environmental mould, but its presence is not unique to the property involved in this case, nor even the North West as a whole, and is likely ubiquitous within UK property. For example, the Regulator of Social Housing undertook a nationwide survey in the aftermath of the inquest, which found that damp and mould was present in potentially upwards of 6% (around 240,000) of the nation’s four million social housing homes.

However, it was implicit during the inquest that the dangers of damp and mould were not well-known, as demonstrated by their lack of reference within the guidance which existed at the time. Whilst the Act is widely drafted, the Government has stated its aim to consult within six months to confirm the relevant timescales and clarify the definition of prescribed hazards.

What can providers do?

Overall the draft Act is to be welcomed, and serves to clarify what steps are to be taken by landlords on being notified of potentially hazardous circumstances within their housing stock over-and-above their existing obligations as landlord.

Pending its full implementation and further guidance/ regulations as to relevant timescales and definitions, there are a number of steps social housing providers can take now to ensure that they are well-positioned going forwards.

For example, they may wish to undertake proactive assessments of their entire housing stock, the types of property included and their repair performance, to identify potential areas of concern. Damp and mould is, to an extent, a seasonal issue, and it would be prudent for providers to undertake a rolling programme of surveys in order to obtain a year-round understanding of the condition of their properties.

This analysis and assessment will enable a risk-based approach to be adopted, based on clear data, which will provide a solid basis for improvement plans and appropriate response procedures. Given the recent spotlight on damp and mould, providers may wish to also clarify the scope, extent and content of their own inspection, maintenance and remedial procedures, to ensure that they remain fit for purpose.

Humidity is accepted as a contributory factor to mould growth, and technology exists to enable providers to remotely monitor levels within their stock. To be effective, staff will need to be trained and educated to identify levels of concern in individual properties.

Once remedial actions have been taken, it would also be prudent for providers to have in place follow-up procedures, to assess whether repairs have been effective. Where unsuccessful, such monitoring will allow for lessons to be learned and appropriate revisions to procedure to be incorporated going forwards.

Safeguarding concerns in the UK care sector are falling from the highs seen during the coronavirus pandemic, new figures show.

From January to May this year, more than 9,000 safeguarding alerts and concerns have been raised in the sector. This compares to a total of 21,886 in 2021, with figures hitting 23,116 last year.

The figures obtained through a Freedom of Information (FOI) request to the Care Quality Commission (CQC) – conducted by law firm Pannone Corporate – also show that inspections in the UK’s care sector are on track to fall, continuing the downward trend seen since 2019.

Announced inspections fell from a peak figure of 6,684 in 2019 to just 1,458 in January to May 2023. Unannounced inspection also appear to be decreasing. According to the FOI figures, 2,223 unannounced inspections were carried out in the first five months of 2023. In 2016, this reached a high of 19,586.

The significant reduction has been attributed not only to the pandemic, with the CQC temporarily ceasing all physical inspections from 16 March 2020, but also to the evolving regulatory model being adopted by the Commission.

Bill Dunkerley, regulatory lawyer and associate partner at law firm, Pannone Corporate, commented: “The seismic impact of the pandemic on the care sector is widely documented and this can be seen in the figures released by the CQC around safeguarding concerns and inspections.

“What’s also clear is that the CQC is not static in its approach and the standards which it expects providers to achieve continue to evolve. This is evident in the introduction ‘Single Assessment Framework’, as well as the initial evidence-gathering phase being simplified into six new categories, to streamline the information collated. The feedback received will allow the CQC to make individual assessments more bespoke to individual providers, for example in respect of their delivery model or population group.”

The FOI research also shows that since March 2021, the CQC has received nearly 37,000 whistleblowing enquiries, with more than 6,000 being received in the first five months of 2023. The number of complaints raised during the same 26-month period topped 135,000. However, with only 25,017 made between January to May 2023, it’s unlikely the figure will exceed the 62,591 seen in total in 2022.

Dunkerley said: “The trend across the board is a general decline in headline figures, with complaints, whistleblowing, and safeguarding concerns all likely to be lower in 2023 based on the current statistics.

“As the CQC continues to roll out its new regulatory model, and Inspectors find their feet with the new data-driven approach, it will be interesting to see how the figures develop over the coming months and years. It may be the case that the CQC’s new approach results in a permanent reduction to the frequency of inspections, but equally may also result in an increase in the use of its more dynamic powers, such as notices, which can have an immediate and profound impact on a provider’s continuing operations.”

Dunkerley added: “Whilst the CQC has modified the form of its regulatory function, and amended its assessment criteria over the years, its fundamental roles have remained consistent: ensuring the safety and quality of care of service users; and maintenance of appropriate standards of behaviour by providers.

“These are the same core objectives held by providers, and so long as they continue to put these demonstrable tenets at the centre of their business, then they are likely to be well-placed to respond to any future changes in the CQC’s operations and regulatory model.”

Pannone Corporate – the North West law firm – has expanded its team with the senior appointment of David Walton.

David joins Pannone’s regulatory team as partner, bringing over 30 years’ experience to the role. He joins from Keoghs LLP, where he played an instrumental role in establishing the crime and regulatory team, working throughout his career on high profile prosecutions instigated by the CPS, HSE, Environmental Health and the Environment Agency.  This includes the CPS-led prosecution following the death of four employees in the Bosley Mill (Macclesfield) explosion in 2015.

At Pannone, David will be responsible for supporting corporate and individual clients facing investigation and/or prosecution by a raft of bodies, including the Police, the HSE, CQC, CIW and Trading Standards, following serious work place accidents or incidents. He will work alongside associate partner Bill Dunkerley to promote the regulatory team’s capabilities to existing and new clients of Pannone Corporate.

Paul Jonson, senior partner at Pannone, said: “Client services is an integral part of our proposition as a firm and that can only be delivered by a highly skilled and talented team. We continue to build our expertise at all levels and David’s appointment is a significant hire – not only for the regulatory team, but the firm as a whole.

“David has an excellent reputation within the marketplace, consistently being ranked as a ‘leading individual’ by Legal 500 and Chambers rankings. He has a wealth of experience in handling heavyweight health and safety prosecutions over a hugely successful career and we’re delighted to have him onboard.”

David said: “I have enormous respect for the Pannone Corporate brand and for the people who have established it over a relatively short period of time.

“I believe my professional and personal background, and my approach to workplace life, is ideally suited to the Pannone culture and to the people who work there. Bill Dunkerley was my assistant for several years when he worked at Keoghs and it’s exciting for both of us that we have the opportunity to work together again. Many of our clients and peers have commented that it is great to see the ‘Dave Walton/Bill Dunkerley team’ back together again!”

Commenting on the sector, he added: “Traditionally, regulatory lawyers are called into action when a client is in distress. Whilst that will undoubtedly continue, I believe the sector will carry on evolving in line with the HSE’s own strategy for the next 10 years, which includes an increased focus on the prevention of accidents. As a result, there will be considerable opportunities for the team to support clients in improving what they already have in place, stress testing systems and procedures and reinforcing key aspects of employee training.”

The results of Pannone Corporate’s 2023 Regulatory survey are in!

Earlier this year we invited responses on a number of issues, to gauge the current concerns and anxieties within businesses as to their compliance obligations and worries for the coming year.

Responses continue to be received, although at this early stage a number of clear trends have already started to emerge.

What EHS issues are currently causing the greatest concerns for businesses?

By far and away the most common concern for recipients of the survey is the issue and impact of sustainability, with 75% of respondents highlighting this as an area of current concern for them and their business.

• Much commentary has already been prepared as to the increasing awareness and presence of sustainability as a concept, and we consider that the focus on re-use, recycling and drive towards a circular economy will continue to pervade all aspects of day-to-day business operations, across sectors.
• We have already started to see claims in the UK against Boards regarding the accuracy of their green credentials, and this area only looks set to further dominate business attention over the coming months and years.

Of almost equal concern amongst respondents to our survey (62%) was their ability to attract and retain quality staff.

• This is an issue which may have its roots in Brexit, but which has likely been exacerbated by global events since 2020. In our experience, employees are now more conscious of issues arising within their working environment and less likely to accept conditions that may be prejudicial to them.

However, somewhat surprisingly, less than 40% of respondents ranked employee wellbeing as a current concern for their business.

• Despite recent emphasis on employee wellbeing within the wider media, and an express intention by the Health and Safety Executive in its current Business Strategy to address workplace stress, on a practical level it does not appear that this external pressure has translated into a significant business priority at this time.
• It is only a matter of time before enforcement action is taken in connection with employee wellbeing, and it is hoped that businesses address their mind to this growing area sooner rather than later.

What has had the biggest impact on EHS?

A clear concern amongst respondents to our survey is confusion caused around the introduction of new legislation, the extent to which new regulations will apply to them and the potentially limited guidance available from central Government in respect of discrete issues, with one respondent stating a desire for, “plain and simple,” language to be used.  For regulations and guidance to be effective, they need to be capable of understanding and comprehension by recipients.

Added to this, the still unknown impact of the Retained EU Law Bill is continuing to cause anxiety for many respondents to our survey, with a number highlighting this as a concern for the immediate future.

The draft Bill continues to work its way through Parliament but, if enacted in its current form, risks removing overnight the majority of EU-derived workplace regulations, including the Working Time Directive, Work at Height Regulations and CDM. Were this to occur, it would have a seismic impact on all businesses and would fundamentally change the nature of workplace regulation.

How can businesses prepare?

The world of workplace and business regulation has been evolving over a number of years, and global events since 2020 have accelerated this change. For example, not only has there been an increase in the number of matters subject to regulation, but the manner and methodology by which regulators discharge their functions has also had to be revised.

These changes look set to continue, and what is clear from the survey responses is that businesses appear to be less concerned with traditional compliance issues and physical health and safety and are currently focused instead on novel issues.

No one can predict the future, but the recent shift in the nature of workplace compliance looks set to continue and businesses should take steps to embrace these changes.

As Lord Robens suggested in his 1972 report, which laid the foundation for the Health and Safety at Work etc Act, what he considered was required was a “greater acceptance of shared responsibility, for more reliance on self-inspection and self-regulation and less on state regulation.”

Going forwards, we consider that rather than businesses addressing their mind to specific risk as they arise – as may have been the case in respect of traditional health and safety concerns and risks to physical safety – what the world of workplace compliance increasingly requires now is a holistic approach.

For example, in respect of employee wellbeing, provision of workplace perks is unlikely to be sufficient on its own. Whilst such measures will usually be appreciated by a workforce, what is of increasing importance is the condition of their entire employment relationship, including in respect of management culture, monotony of daily routines and efficiency of IT systems.

When Andy Burnham, then MP for Leigh, proposed a statutory duty of candour for public authorities back in 2017, he no doubt hoped that progress might now have been made. His draft Public Authority (Accountability) Bill, prompted by his involvement with the Hillsborough families, would have required public authorities to admit responsibility following adverse and mass casualty incidents, potentially even before court proceedings had been intimated.

That Bill was put on hold following the snap General Election in May 2017, but calls for progress have recently been reinvigorated following the introduction of similar duties within the healthcare sector, as well as a number of high-profile incidents, including the Grenfell Tower fire and, more recently, the inquest touching upon the death of Awaab Ishak.

Statutory duty of candour

During a public discussion held in Manchester last month, Mr Burnham supported calls for the playing field to be levelled between bereaved families on the one hand, and well-resourced public authorities on the other during investigations into mass casualty events. It appears that this objective has been borne out of disquiet that, despite the extent of investigations prior to the second Hillsborough inquest, neither the coronial nor criminal justice system had been able to reveal the cover-ups which subsequently came to light.

The ‘Hillsborough Law’ which is proposed would establish a statutory duty of candour, requiring public authorities, public servants and officials to:

• act at all times in the public interest and with transparency, candour and frankness, and to detail the measures taken to further to these objectives in a published Code of Ethics;
• assist court proceedings, official inquiries and investigations where their own acts or omissions are (or may be) relevant; and
• disclose information which may change the scope of any proceedings, inquiry or investigation.

It is proposed that ‘public authority’ be given the wide-ranging and inclusive definition: “any national or local government department… institution or agency engaged in functions of a public nature… [this] includes entities with a private structure but which are majority owned by public funds.”

To ensure compliance with the proposed duties, it is suggested that new offences be created for failure to discharge the duty, punishable by a fine and/ or custodial sentence.

Offences would also be committed by public servants, if they intentionally or recklessly misled the general public, the media or proceedings. In addition to an organisation’s offending, individuals would also be liable if by their acts or omissions they hindered their authority’s compliance with its the duty.

Parity of funding

Hillsborough Law also suggests that bereaved families and ‘core participants’ at inquiries and inquests be entitled to publicly funded legal assistance and representation at the same level, or in proportion to, the resources available to the public authority, to ensure a parity of arms.

What could this achieve?

When introducing the initial draft of what is now the Hillsborough Law back in 2017, Andy Burnham summarised the motivation as “simple”:

“It [is]…to protect other families from going through what the Hillsborough families went through and from a similar miscarriage of justice. It empowers victims to secure disclosure of crucial information and prevent public authorities from lying to them or hiding the truth by making that an imprisonable offence… it creates a level legal playing field at inquests for bereaved families so that finally inquests become what they should always be – a vehicle to get to the truth.”

When can we expect a change?

First introduced in 2017, the Bill’s progress was thwarted by the dissolution of Parliament for the General Election in May of that year.

The Law Commission has consulted generally on the offence of misconduct in public office, providing its final report in December 2020, which concluded that the offence should not be retained in its current form. Specifically the Commission recommended repeal of the offence and its replacement with two separate offences, being:

• An offence of corruption in public office, applicable when a public office holder knowingly uses, or fails to use, the public position for the purpose of achieving a benefit, where that behaviour would be considered seriously improper; and
• An offence of breach of duty in public office, which would apply where a public office holder is subject to and aware of a duty to prevent death or serious injury that arises only by virtue of the functions of the public office, where there is a breach of that duty and in so doing the person is reckless as to the risk of death or serious injury.

The Government’s response to the Commission’s report is awaited, and it does not therefore appear that there is any current appetite within government to progress the proposals.

By contrast, Labour have publicly stated that the Hillsborough Law will form part of its next election manifesto and it will introduce relevant legislation is if is elected.

Public Advocate Bill

Some progress may have been made towards the general aims of ensuring parity between bereaved families and public authorities with the introduction last summer of the Public Advocate Bill, which has received its first reading in the House of Lords. A date for its second reading is awaited.

The current draft of the Bill proposes the establishment of a Public Advocate office, which would have responsibility for reporting to bereaved families regarding the progress of criminal and inquisitorial investigations into casualty events, to set up a panel to review all documentation relating to the event if requested, and publish a report following its review of such documents. Again, the objective is to minimise the potential for cover-ups and permit full analysis of the facts at the earliest opportunity.

Comment

To date there is little clarity as to what exactly is meant by the term, ‘candour,’ and the precise scope of the proposed Hillsborough Law remains unclear. Certainly we would not expect any duty to require criminal suspects to make admissions prior to appearing before the Court: that would fundamentally undermine the criminal justice system.

A similar proposal in Scotland has recently been rejected by the Scottish Government, on the basis that it considers the existing legal framework to be, “robust,” and has dismissed further specific legislation as, “unnecessary.”

Questions will also arise as to the tension between the requirement for candour and the right to silence in the criminal process. Where someone reasonably asserts that right, they are unlikely to be guilty of lacking candour. However, the idea that any assertion of the right of silence will be subject to third party scrutiny is seismic to say the least.

The proposal to extend legal assistance to bereaved families is likely to receive widespread support. However, the very significant cuts to the legal aid budget in recent years and continuing austerity generally begs the question: where will the money come from?

Interestingly, the 2017 Bill proposed a limit on the legal spend of public authorities in responding to inquests and inquiries – the logic being that the requirement for them to ‘come clean’ at the outset will reduce the length of investigations and thereby ensure costs savings for all. Any such limits may however fetter the ability of public authorities to fully and properly articulate their case when responding to investigations.

Also, it is often extremely difficult at the outset of an inquiry or inquest to estimate the overall costs that may be incurred. Were a cap to be introduced in responding to any such proceedings, the basis for this would need to be carefully considered, to ensure that all parties are capable of achieving full and proper advice and representation.

In addition, of the organisations which have to date voluntarily accepted responsibility in the immediate aftermath of adverse incidents, there has been little acknowledgement of their acceptance or explicit reduction in the fine imposed.

For example, Sentencing Guidelines for health and safety offences are stated to be punitive and designed to send a message to shareholders. To this end they can therefore be seen as a ‘stick’ to encourage early admissions and prompt acceptance of responsibility.

However, there does not appear to be any comparable or tangible ‘carrot.’ In the absence of an acknowledged benefit or (financial) incentive for being candid, a potential defendant to further investigation is likely to consider themselves caught between a rock and a hard place.

Conclusion

Despite the suggestions for improvement which have been highlighted by bereaved families over recent years, the enactment of a statutory duty of candour appears low on the Government’s priorities at the current time.

If the proposed Hillsborough Law is to become law then there needs to be careful consideration of the potential, but significant, implications to ensure that there is genuinely fairness to all parties concerned.

Inspections in the UK’s care sector have fallen dramatically in the last seven years, as the Care Quality Commission (CQC) continues to evolve its regulatory model, accelerated by the coronavirus pandemic.

From 2015 to this year, the number of inspections undertaken by the CQC has dropped by around 97 per cent – from a peak of almost 23,000 to just over 8,000 to date in 2022. Understandably, there was a significant reduction across all types of inspections during 2020 as a result of the pandemic, with the CQC temporarily ceasing all physical inspections from 16 March.

The figures obtained through a Freedom of Information (FOI) request to the CQC – conducted by Pannone Corporate – also shows that announced inspections fell from a peak figure 6,684 in 2019 to 3,593, with unannounced inspections also decreasing, from 19,586 in 2016 to 4,663 to date in 2022.

Bill Dunkerley, regulatory lawyer and associate partner at law firm, Pannone Corporate, commented: “It’s very clear that the coronavirus pandemic had a profound effect on the CQC’s ability to carry out inspections within the care sector, despite a number of inspections taking place by means of its Emergency Support Framework.

“However, what is clear from the figures is that inspections have been progressively declining over a number of years, from their peak in 2016. The reason for this decline is unclear, given that inspections are the primary way the CQC monitors compliance. Anecdotally, there may have been an initial backlog from when the new legislation came into force, with the CQC reviewing every application for re-registration.

“As the Commission continues to capture information and rate providers in accordance with the new standards, there is less need for unannounced inspections, with Inspectors proceeding instead by way of ongoing monitoring and announced follow-up visits in response to specific concerns received. This reflects the CQC’s revised – and evolving – regulatory model, which emphasises targeted inspections in response to specific concerns received. Moving forward, this risk-based approach is likely to continue as part of the Commission’s move towards a ‘single inspection framework’ and programme of rolling multi-point assessments.”

The research also shows that between 11 November 2021 and 15 March 2022, when vaccination was a condition of deployment, the CQC received 13,339 concern, safeguarding and whistle-blowing enquiries. By contrast, the total number of concern enquiries received by the CQC in 2019 as a whole was just over 43,000.

Dunkerley said: “During a short period of time, the number of concern enquiries remained at a high level. However, the annual figures are broadly consistent over a number of years which indicates perhaps that the presence of COVID-19 had little impact on the number of complaints generated.

“What is evident from the CQC figures is that in terms of enforcement, notices remain by far the single most commonly used regulatory action by the Commission, accounting for more than half of its enforcement activity.”

The FOI request shows that more than 69,000 requirement notices have been issued since 2015 (3,099 in 2022 to date), with over 7,000 warning notices during the same period (152 during 2022 to date).

Dunkerley added: “The changing landscape and evolving position of the CQC cannot detract from the fact that the Commission is still eager to impose conditions, cancel registrations and vary conditions of care providers. With the number of legal reviews standing at 132, it’s imperative that service providers review their procedures, systems and address risk areas in anticipation of inspection or intervention. The most effective management, however, is to avoid the initial set of circumstances that bring about regulatory intervention or investigation.”

As part of the launch of our annual Care Report, barrister, Jonathan Landau, looks in more detail at the CQC’s new strategy and the likely consequences. 

The care sector is an integral part of the UK’s societal landscape – both in economic terms and the number of vulnerable people it services. With an ageing population – with estimates suggesting a 36% growth in the number of people aged over 85 by 2025 – it’s clear that the sector will only grow in prominence over the coming years. 

The regulatory structure that sits around the sector has been governed by the Care Quality Commission (CQC) since 2009 when the external body was created to regulate and monitor health and social care services in England, taking over the roles and responsibilities of the Healthcare Commission, Commission for Social Care Inspection and Mental Health Act Commission. In bringing together these three predecessor organisations it was (and remains) the CQC’s stated aim to ensure that, “health and social care services provide people with safe, effective, compassionate and high-quality care.”

Initially the CQC inspected and monitored registered care providers in accordance with 16 ‘essential standards’ of quality and safety. However in the years that followed its creation there was, both within the CQC and the wider industry, a perceived lack of understanding as to how the essential standards were applied and interpreted in practice, prompting new ‘fundamental standards of care’ in 2015. To assist in enforcing the required standards, the CQC was given new powers, transforming it from an inspection and monitoring organisation into a regulator with teeth, including not only civil enforcement powers, but also the ability to prosecute those who had failed to meet those required standards.

Roll on six years and the role of the CQC remains a great source of debate. A global pandemic has made a seismic change to the way in which the CQC has pursued its objectives, and earlier this year it introduced a new strategy ‘for the changing world of health and social care’. The aim of the strategy, published in May 2021, is to strengthen the CQC’s commitment to deliver its purpose.

The CQC claims that its aims and role as a regulator won’t change – but how it works will be different. The strategy is based on four themes:

People and communities

Regulation that’s driven by people’s needs and experiences, focusing on

what’s important to people and communities when they access, use and move between services.

Smarter regulation

Smarter, more dynamic and flexible regulation that provides up-to-date and high-quality information and ratings, easier ways of working with the CQC and a more proportionate response.

Safety through learning

Regulating for stronger safety cultures across health and care, prioritising

learning and improvement and collaborating to value everyone’s perspectives.

Accelerating improvement

Enabling health and care services and local systems to access support to help improve the quality of care where it’s needed most.

The ‘smarter regulation’ theme is likely to have the biggest impact on providers, in terms of how they are inspected and rated. There will be a move away from relying chiefly on comprehensive on-site inspections. Instead, the CQC will develop continuous insight and monitoring methodologies. It anticipates that this will enable inspectors to spend more time speaking with people when on site rather than looking at paperwork.

The CQC also plans to develop innovative ways of analysing data and using AI to make decisions. Ratings will be more dynamic and won’t require an inspection for a change in rating.

All of this presents both risks and opportunities. In terms of risks, the validity of the CQC’s judgements will only be as robust as the systems it uses and the data it obtains. Providers, their advisors, and representative bodies will need to scrutinise the methodologies as they develop and quickly raise concerns. It’s likely that AI, for example, will pose some difficulties, with the potential for some very uncomfortable – even discriminatory – decisions for the CQC. Providers will also need to advocate for a fair system of challenging any decisions, as it seems unlikely that the factual accuracy correction procedure will not be available for such a dynamic regulatory scheme. That is particularly important if the CQC is obtaining information from sources it cannot itself verify and if it is making decisions on an AI (read automated) basis.

In terms of opportunities, providers that develop good relationships with stakeholders, and who invest time in understanding the CQC’s methodologies, will be well-placed to achieve good ratings and may benefit from lighter touch regulation. The more developed the CQC’s methodologies are, the easier it will be for providers to ensure that they can provide the evidence to satisfy the independent regulator.  

Currently, the CQC is targeting services with which it has concerns. In many cases, it does not have concerns about homes with lower ratings because of the improvements they have made. That leaves them stuck on lower ratings, because the CQC is not re-inspecting them. The ability for ratings to improve quickly is therefore very welcome.  

The themes of the new strategy are laudable, but it is inevitable that there will be unintended consequences and teething problems as the methodologies develop. Case associations and providers’ trusted advisors will be well-placed to keep them informed as the detail emerges.

Jonathan Landau is a barrister at 5 Essex Court. He has particular expertise in inquests and healthcare regulation. Joanthan is regularly instructed in relation to high profile Article 2 and jury inquests, often in the context of media coverage or regulatory investigations. He advises in respect of a broad range of healthcare regulatory matters including all levels of CQC and Ofsted enforcement, safeguarding investigations, commissioning disputes, contract monitoring, and mental capacity.

Whistleblowing in the UK’s care sector rose to its highest recorded level in 2020, driven by health and safety concerns brought on by the coronavirus pandemic.

The number of whistleblowing complaints made to the Care Quality Commission (CQC) has increased year-on-year since 2015, with a 43% rise between 2019 and 2020 – a total of 14,508 enquiries were received last year.

The figures obtained through a Freedom of Information (FOI) request to the CQC – conducted as part of an annual Care Report by Pannone Corporate – also show that ‘concern’ enquiries increased by 39% between 2015 and 2020. However, the number of safeguarding complaints fell to its lowest level last year to 25,847, driven in large part due to a reclassification of abuse notifications in March 2018 and an increase in providers notifying their local authorities in the first instance rather than the CQC.

Bill Dunkerley, regulatory lawyer and director at law firm, Pannone Corporate, commented: “The global pandemic has had a profound effect on the care sector, touching every facet of the industry – whether that’s financially, operationally, or from a corporate governance perspective. Prior to 2020, the word ‘pandemic’ was unlikely to be considered as anything more than a theoretical risk. However, events since March last year, and the imposition of the first national lockdown in the UK, have demonstrated that providers must be prepared for all eventualities and risks.”

He continued: “In the context of the last 18 months, it comes as little surprise that the number of whistleblowing enquiries rose to its highest recorded level in 2020. In general terms, the majority of complaints in the UK relate to health and safety matters. It’s therefore reasonable to assume that the increase in complaints from 2019 to 2020 were related to the coronavirus, with safety concerns around COVID-19 extremely likely to have played a role in these figures.”

The Care Report 2021 shows that regulatory interventions rose by 109% between 2016 and 2019, understandably falling in 2020 due to a seismic change in how the CQC conducted itself as a result of COVID-19. The rise in interventions mirrors the number of enforcement actions carried out by the CQC, which revealed an 87% increase since 2014/15 in its latest annual report.

Dunkerley said: “In light of the increasing use of enforcement action by the CQC, as well as the apparent realisation of the intention to prosecute more cases, it’s imperative that service providers review their procedures, systems and address risk areas in anticipation of inspection or intervention. This includes assessing areas of their operation requiring immediate improvement; undertaking pro-active audits of risk areas and implementing remedial or control measures where appropriate; and responding to near misses and learning from them to prevent a recurrence.”

He added: “The last 12 months have had a particular impact on the CQC, which has had to respond to the novel challenges presented, as well as clarify its own role in regulating providers in light of recent criticisms. When you consider that people are also more alive to potential issues of concern, as well as becoming more aware of the CQC’s role as regulator and its power to take enforcement action in response to issues of concern, then we are likely to see considerable change in the care sector over the course of the next 12 months as providers and the CQC adapt.”

To read the report in full, click here

The Building Safety Bill was introduced to Parliament on 5 July by Housing Minister Robert Jenrick MP.

Although the headline proposals contained within the Bill have been known for some time, its formal introduction marks a significant – and crucial – moment in its development. The draft is not only voluminous (running to 218 pages), but also seeks to fundamentally revise the current system of building safety and regulation, with the Government confirming that it intends the Bill will “create lasting generational change”in terms of how buildings are designed, constructed and maintained.

The Bill is incredibly wide-ranging in its proposed scope and extent, but what are the key changes suggested?

A ‘Golden Thread’ of Information

A key objective of the Bill is to establish a ‘Golden Thread’ of information to identify at every stage of a residential building’s lifetime, from planning and design through to completion and occupation, who is responsible for ensuring safety standards, and for managing potential risks.

In general terms, the Bill proposes that the person or entity which creates a potential risk should, as far as possible, also be responsible for managing that risk.

To help the passage of information between duty holders, the current Building Act will be amended to introduce a new ‘Gateway’ regime. Each gateway is intended to act as a ‘hard stop’ with compliance and appropriate sign-off/regulatory approval being required before the next development stage is able to commence.

To assist in retaining the Golden Thread of information following completion, and to act as an identifiable point of liaison for residents, the Bill will establish an Accountable Person for all higher risk buildings, being those over 18m/ seven storeys in height and which contain at least two residential units. The Accountable Person may be an individual or corporate entity. Once appointed, the Accountable Person must apply to the Building Safety Regulator for a Building Assurance Certificate, as confirmation that they are complying with their statutory obligations and must manage the ‘golden thread’ of information.

In addition, the Accountable Person must also appoint a Building Safety Manager (before occupation in relation to higher-risk buildings) to assist them with the day-to-day management of safety within the building.

The Building Safety Regulator must be notified of the appointment of the Building Safety Manager and will have the power to veto their appointment if it is not satisfied that they have the relevant skills, knowledge, and experience to discharge their responsibilities.

Building Safety Regulator

The Bill proposes extensive and wide-ranging powers for the new Building Safety Regulator, including the ability to investigate and prosecute those who fail to meet the new standards and requirements. Where corporate offences are found to have been committed with the consent, connivance or neglect of directors or managers, then those individuals will also be liable to prosecution in addition to the corporate entity. The Regulator will comprise both resident representatives and industry experts.

In addition, the Bill permits the Building Safety Regulator to appoint a Special Measures Manager to replace the Accountable Person or Building Safety Manager, where serious failures endangering the life of residents are identified.

Mirroring existing powers of the Health and Safety Executive, the Building Safety Regulator will also be able to issue compliance notices, which will require duty holders to rectify non-compliance issues by a specified date. In addition, the Regulator will have the ability to issue stop notices during the design and construction phase, mandating the stoppage of work until non-compliances have been addressed. Failure to comply with either type of notice will be an offence, punishable by a custodial sentence of up to two years for individuals, and/ or an unlimited fine for corporate entities.

Peter Baker, Chief Inspector of Buildings within the Health and Safety Executive, has said of the Bill’s introduction that it, “will give HSE the tools to deliver its important role as the Building Safety Regulator and is an important step in setting out what will be expected of future duty holders”.

He continued: “Everyone involved in higher risk buildings from design, construction and day-to-day operations will manage and control building safety in a way that is proportionate to the risks. This will ensure these buildings are safer for those who live in them, and they have a stronger voice. I encourage duty holders to use the Bill’s introduction in preparation for the new, more rigorous regulatory regime.

“The Building Safety Regulator will continue to work with industry and others to deliver the new building safety regime to ensure that residents of higher risk buildings are safe, and feel safe, in their homes now and in the future.”

New Homes Ombudsman

The Bill also proposes the establishment of a New Homes Ombudsman scheme, to receive complaints from the owners of new build homes and to help hold developers to account. The Ombudsman will be able to impose sanctions on developers who breach requirements, although an appeals procedure will also be available.

However, unlike other Ombudsman services, the Bill mandates that developers become, and remain, members of the new scheme.

Regulation of Construction Products

The Bill proposes to regulate construction products placed for sale on the UK market, through the concept of ‘safety critical products’ and their inclusion on a statutory list. The Bill also contains provision for future regulations to be introduced to prohibit the supply or marketing of products which are unsafe.

Where products do not fall under an existing regulatory regime and are not included on the statutory list, the Bill enables regulations to be created which will require manufacturers to ensure that the products they supply are safe, with breach resulting in prosecution.

Conclusion

The draft Bill has a long way to go before it receives Royal Assent. Given that there is little time for further discussion before the start of the summer recess at the end of July, the majority of discussions will likely take place from the autumn. Thereafter, it is unlikely that the Bill will come fully into force much before summer 2022.

Whilst it is hoped that the Bill will be able to be enacted without significant amendments, to the benefit of all stakeholders and residents, it is not expected to have an entirely smooth transition through Parliament. For example, it is anticipated that substantial amendments will be proposed by the opposition and rebellious Conservative backbenchers, especially in relation to the redress available to leaseholders within unsafe buildings.

If you would like more information on the Building Safety Bill, contact regulatory director, Bill Dunkerley, on Bill.Dunkerley@pannonecorporate-com.stackstaging.com or call 07920 237681.

Welcome to our Winter newsletter!

As the light finally appears at the end of the Covid19-shaped tunnel, we’ve seen a period of significant developments across our practice area.

In the past month, the Supreme Court has turned inquest practice for regulatory lawyers on its head. An uninvited ruling looks set to make cases following workplace deaths far more challenging and potentially dangerous for employers.

The High Court has also been in action, ruling that the UK has failed to fully implement two EU health and safety Directives. Gig economy workers can now enjoy some of the protections afforded to their employed counterparts. Watch this space for an appeal.

We’ve also included a report from our annual seminar event. We looked at how Covid19 has changed the way regulators are behaving, from their investigatory methods through to their enforcement decision-making. A summary of the key points is included.

As ever, we welcome your feedback and questions so please do get in touch.  We wish you, your colleagues and your families all the best for the festive season.

“A Member State may not prohibit the marketing of cannabidiol (CBD) lawfully produced in another Member State when it is extracted from the Cannabis sativa plant in its entirety and not solely from its fibre and seeds”. – the European Court of Justice (ECJ)

Beleaguered by a patchwork of regulation and shifting goalposts, these words from came as music to the ears of the burgeoning CBD industry in Europe.

Background

The case followed the criminal conviction of the directors of a French vaping company, prosecuted following the use of CBD extracted from hemp plants (including their leaves and flowers) lawfully grown in the Czech Republic.

French legislation prohibits the marketing of CBD lawfully produced in another member state when it is extracted from the cannabis sativa plant in its entirety.  Current law allows only the commercial use of hemp fibres and seeds.

The French Court asked the ECJ to determine whether its domestic laws were compatible with the free movement of goods.

The ruling

The ECJ determined that free movement of goods should apply to CBD.  Importantly, this was decided on the basis that CBD is not a narcotic (which of course cannot benefit from such freedom).

The ECJ ruled that member states cannot prohibit the marketing of CBD, lawfully produced in another member state when that CBD is extracted from the cannabis sativa plant as a whole.  Such a prohibition can only be justified by the objective of protecting public health but countries should not go beyond what is necessary in order to achieve this.  Member states wishing to introduce such rules must assess available scientific data to ensure that any risk to health alleged is real and not based solely on hypothetical considerations.  A prohibition will only be lawful if that risk is sufficiently established.

Why is this important?

In our last newsletter, we reported on the shockwaves created when the European Commission paused all novel food applications for naturally occurring CBD products.

The FSA’s position is now entirely in line with that of the ECJ.  In making its recent decision, the court concluded that:-

• The (natural) CBD product in issue did not appear to have any psychotropic effect or any harmful effect on human health.
• Synthetic CBD would be allowed under French law but has the same properties as the banned natural substance. From a public health perspective, there was no difference between the two.
• According to the current state of scientific knowledge, the CBD in this case appeared to have no psychotropic effect or any harmful impact to humans.

In celebrating the result, Managing Director of the European Industrial Hemp Association Lorenza Romanese welcomed the ruling noting that, in her view, what the European hemp sector needs now is “a fair and coherent legal framework”.

What next?

The Commission has confirmed it, “takes note of the Court’s ruling…and will carefully assess the judgment”.  Its approach to the paused novel food applications will no doubt await events at the UN in early December when the UN is due to vote on a World Health Organisation (WHO) recommendation that cannabis be reclassified under the Convention – it is currently in the same category as cocaine and heroin.

A WHO scientific working group has examined the risks of CBD, cannabis and THC and concluded that the current classification could not be justified.  WHO also recommends that preparations with a THC content below 0.2% should be excluded from the Convention altogether.

In the meantime, those placing products on the UK market can enjoy the relative certainty of the timetable set out by the FSA earlier this year. In summary:-

• all CBD products currently on sale can remain so until 31 March 2021, by which time the CBD ingredient must be subject to a valid novel food application. The products can then remain on sale until the application is determined;
• if no application is made, the products should be withdrawn from sale;
• no new products should be placed on the market now.

From April 2021, the FSA will encourage Trading Standards to take enforcement action against businesses contravening the above position.  As a result of this clear framework, it is anticipated that the UK market will begin to flourish ahead of its European counterparts.

If you have any questions about this update or the use of CBD in food and beverages, please contact Rhian Greaves in our Regulatory team.

The Competition and Markets Authority (CMA) has established a new taskforce to investigate and, if necessary, take enforcement action against organisations that breach consumer protection regulations in their response to the consequences of COVID-19.  Specifically the taskforce will investigate refusals to administer refunds where goods or services have not been provided due to the disruption caused by the pandemic.

Making its position clear, the CMA stated, “Where a contract is not performed as agreed, the CMA considers that consumer protection law will generally allow consumers to obtain a refund.

The CMA expects consumers to be offered full refunds where:

• a business has cancelled a contract without providing any of the promised goods or services;
• no service is provided by a business, for example because this is prevented by Government public health measures;
• a consumer cancels, or is prevented from receiving any services because Government public health measures mean they are not allowed to use the services.

The CMA acknowledges that there are a number of other situations which may arise as a result of ongoing restrictions. It has provided the following guidance:-

• Ongoing contracts: where a business provides regular goods or services in exchange for a consumer’s ongoing payment, a refund should be offered for any services the consumer has already paid for but which cannot be provided because of current public health measures. The business  can request a contribution to its costs from the consumer until the service is resumed but this is only permissible where the contract clearly provides for this.
• Non-refundable payments and fees: the CMA considers that consumer protection legislation permits a refund to be provided even where the consumer has paid a ‘non-refundable’ deposit or advance payment. Businesses should not charge administrative fees for processing such refunds.
• Credits and re-booking: consumers can be offered credits, vouchers, re-booking or re-scheduling as alternatives (and in addition) to a refund, but consumers should not be misled or pressured into their acceptance. Any restrictions that apply to alternatives, such as time limits within which they are to be used, must also be fair and highlighted to consumers prior to acceptance.
• Future contracts: businesses should not seek payments for services they know they will be unable to provide, even after current restrictions have been lifted. By contrast, where an organisation reasonably expects to be able to provide a future service those businesses can require consumers to continue making payments.
• Cancellation by consumers for other reasons: if a contract is cancelled by a consumer because they no longer require the goods or services even if they can still be provided, consumers are entitled to a refund in line with the applicable terms and conditions so long as the terms are fair.

Conclusion

The CMA has extensive powers of enforcement if it considers that a business has breached consumer protection regulations, including:

• requesting an undertaking from a business that it will change its practices;
• issuing civil proceedings;
• seeking an ‘enforcement order’ against a business to stop the offending conduct; and
• ‘enhanced consumer measures’ which enable it to seek redress on behalf of consumers.

Whilst COVID-19 continues to cause disruption to many aspects of daily living, businesses must nonetheless be mindful of their ongoing consumer protection obligations and act at all times in accordance with the applicable regulations, or else risk intervention and investigation by the CMA.

Welcome to our Spring newsletter!

When we started to curate the updates for this bulletin, we could hardly have anticipated the sheer scale of the Covid19 pandemic and its effect on us all. Much has been written about the impact across the various industry sectors (including by us). But whilst coronavirus has rightly demanded our attention, other developments have continued across our practice area, albeit at a slower pace than before.
In this issue, we look at some of those changes; revisiting the issue of sentencing in health and safety cases, looking at recent consultations in allergen labelling and online advertising and examining the Government’s Environment Bill.
As always, we welcome your feedback so if you do have any thoughts, comments or queries, please don’t hesitate to get in touch.
In the meantime, we wish you, your families and your colleagues all the best at this most challenging time.

Health and Safety Viewpoint: Back to Basics

In the past six weeks, our lives have changed beyond all recognition. With the lockdown and its stringent restrictions on our movement, virtually all jobs have changed in some way. As thoughts turn to how we might exit the lockdown, workplaces will need to continue to adapt to the challenges Covid19 presents.

More…

Health and Safety Viewpoint: Sentencing update

The Sentencing Council’s Definitive Guideline for Health and Safety Offences applies to all cases sentenced after 1 February 2016, and prescribes the calculations to be undertaken by a Court when sentencing.

More…

Health and Safety Viewpoint: Corporate manslaughter prosecutions

The Corporate Manslaughter and Homicide Act 2007 was introduced to make it easier to prosecute companies, where it was alleged that corporate failings had caused an individual’s death. The Act sought to address long-standing public dissatisfaction at a perceived failure to hold organisations to account in the aftermath of high profile disasters such as the Herald of Free Enterprise and Hillsborough.

More…

Fire Safety News: Government responds to “Building a Safer Future”

The tragedy at Grenfell Tower rightly spawned a number of consultation exercises designed to establish how we can better manage building safety. One such exercise, “Building a Safer Future” sought views on proposals for a “radically new building and fire safety system”. It reported last year and, earlier this month, the Government published its response.

More…

Care Quality Viewpoint: Failing to prepare is preparing to fail

The steps taken by a provider prior to and in the immediate aftermath of a crisis event can be determinative of what enforcement action is pursued against it. It is imperative that providers proactively consider how they would respond to a crisis.

More…

Care Quality News: Increasing care sector fines but no consistency?

The number of prosecutions brought by the Care Quality Commission (CQC) continues to increase. Although the fines imposed on providers following conviction have been relatively low, the lack of applicable sentencing guidelines has led to inconsistencies between fines, as well as with those handed down in sectors where guidelines do apply.

More…

Care Quality News: Allegations of duplication in CQC reports

It came to light in January that duplicate material had been identified in a number of Care Quality Commission (CQC) inspection reports.
Whilst initially it was reported that there were 78 instances alleged, the figure subsequently rose to 108 following internal peer review and audit by the CQC.

More…

Environment News: Environment Bill on hold

The progress of the Environment Bill has been temporarily suspended as Parliament works to cope with the practical and logistical challenges presented by Covid19. At the time of suspension, the Bill was being considered by a Public Bills Committee.

More…

Environment News: Waste crime task force launched

The war on waste has a new ally as the Government launched the Joint Unit for Waste Crime (JUWC) earlier this year. Described as a “giant step forward”, the new unit brings together law enforcement agencies, the environmental regulators, HMRC and the National Crime Agency to tackle the growing trend in criminal waste networks.

More…

Food Safety News: Use by dates under the spotlight

Tesco recently challenged a Magistrates’ Court decision that it was a criminal offence for a shop to offer food for sale after its labelled use by date.

EU food law is clear that “unsafe food must not be placed on the market” and as a result requires highly perishable foods to be marked with a use by date. After that date, the food is deemed to be unsafe.

More…

Food Safety News: Novel food deadline for the CBD industry

Ever since the European Commission confirmed the “novel” status of cannabidiol (CBD) in January 2019, businesses in the UK market have been thrown into a state of flux given a very uncertain regulatory position.

More…

Food Safety News: Allergen consultation now closed

The Food Standards Agency (FSA) has now concluded its consultation exercise as it looks to finalise its Technical Guidance for Allergen Labelling in advance of the introduction of “Natasha’s Law”. Coming into force on 1 October 2021, the new rules amend the Food Information Regulations 2014 to require increased detail when labelling food that is pre-packed for direct sale (PPDS).

More…

Advertising Standards News: Call for evidence extended

Online adverts represent half of all advertising spend in the UK.
Their increasing importance to businesses looking to market products and services brings benefits and challenges in equal measure. The dynamics are different, the speed of response much quicker and the potential to target an audience unparalleled.

More…

Trading Standards News: Busier than ever?

Whilst many regulators have suspended routine activity and are working from home during the lockdown, National Trading Standards (NTS) has warned the public about a rise in scams following the onset of the pandemic.

More…

COVID-19: Information from the regulators

The pandemic has presented challenges for the regulatory agencies as they seek to discharge their statutory responsibilities during the lockdown. Most have issued revised guidance and position statements, which we have collated.
The guidance is largely concise and clear but if you have any queries regarding its application to your business, please do get in touch.

More…

The publication outlines the Government’s response to the consultation and details how the reforms are to be delivered. The Housing Secretary Robert Jenrick MP has described the reforms as, “bringing about the biggest change in building safety for a generation.” The proposals build on the recent Budget announcement of a £1B fund to support the remediation of unsafe non-ACM cladding materials on high-rise buildings.

Of note, the Government’s response:

– Mandates the inclusion of sprinkler systems and consistent wayfinding signage in all new high-rise residential buildings over 11m in height;
– Provides practical details as to the formation and delivery of the new Building Safety Regulator;
– Outlines proposals for a, “more rigorous approach to accountability,” through the lifetime of buildings, from their design and construction through to occupation and refurbishment;
– Proposes a stronger voice for residents, providing them with new rights to receive information concerning the safety of their building;
– Requires Building Safety Managers to produce and implement a Resident Engagement Strategy, detailing how they will inform and engage residents and involve them in decision-making;
– Recommends the creation of a new Construction Products Standards Committee, comprising of technical experts and academic, to advise the Secretary of State for Housing on whether voluntary industry standards for construction products should also become UK regulatory standards; and
– Proposes a roundtable meeting between the Housing Secretary and mortgage lenders to work on an agreed approach to mortgage valuations for properties in buildings under 18m in height, to provide certainty for owners affected by vital building safety work.

These measures are in addition to the introduction of the Fire Safety Bill in March 2020, which (if enacted) will confirm that building owners and managers of all multi-occupied residential buildings must assess the risks from external walls and front entrance doors in accordance with the Regulatory Reform (Fire Safety) Order 2005. Local Fire and Rescue Authorities will enforce compliance with the Bill.

Mr Jenrick remains of the view that building safety reforms are a top priority but is also mindful of the challenges presented to the sector by COVID-19 and has explained that the government is, “supporting building owners, managers and residents to ensure that remediation work continues where it is safe to do so.” Vital maintenance and repair work can continue to take place so long as it is conducted in accordance with public health guidance.

Even before the current pandemic, the healthcare sector faced daily financial and logistical hurdles. Now, not only do you have an unprecedented challenge in responding as a sector to an unexpected global event, but at an operational level you must also keep up to date with almost daily revisions to procedure, amended guidance and evolving regulatory approaches.
To help understand the procedural and regulatory changes which have been (and continue to be) introduced, we highlight below some recent headline developments which we consider will influence on a practical level how you respond to the continuing spread of the disease.

Statutory Notifications
Although the Care Quality Commission (CQC) and Health and Safety Executive (HSE) have suspended routine inspections, both organisations have issued guidance detailing the reporting requirements of COVID-19.

• CQC: you do not need to notify individual coronavirus cases, and need only notify if coronavirus affects the day to day running of your business in that you cannot safely meet the needs of your service users or a utility, fire alarm, call system or other item of safety equipment fails for more than 24 hours. Non-COVID-19 notifications should continue to be submitted, “without delay,” in the normal way.

• HSE: in cases of employee infection, RIDDOR reports should only be submitted where:
an unintended incident at work has led to someone’s possible, or actual, exposure to coronavirus, this must be reported as a dangerous occurrence. The example given by the HSE is a lab worker accidentally breaking a glass vial containing the virus;
a worker dies as a result of occupational exposure to coronavirus; or
a worker has been diagnosed as having COVID-19 (supported by a registered medical practitioner’s diagnosis) and there is reasonable evidence that it was caused by exposure to the virus whilst at work, this must be reported as a ‘disease’. The HSE gives the example of a healthcare professional who is diagnosed with COVID-19 after treating patients with the virus.

The requirement for an actual diagnosis by a medical practitioner before a case can be considered as potentially reportable is helpful. However, there is still room for interpretation over what amounts to, “reasonable evidence,” that the virus was contracted at work, with huge reliance being placed on any commentary from the diagnosing doctor as to the circumstances of transmission (which may or may not be available, or forthcoming).

Like all government agencies, the HSE is doing its best to keep pace with the pandemic. It accepts however that as the prevalence of the disease increases, it will be difficult for employers to establish whether or not an infection was contracted as a result of their work.

Going forwards all employers with open workplaces need to remain updated and alive to the potential need to report diagnosed cases.

Inquests
The spread of COVID-19 has had a significant impact on the court system. Mirroring procedural changes introduced within the mainstream judiciary, the Chief Coroner has produced a number of Guidance Notes in an effort to both limit the number of physical hearings taking place, as well as protect court staff.

At a practical level, COVID-19 is an acceptable (direct or underlying) cause of death for the purposes of the Medical Certificate of Cause of Death. Therefore the fact that an individual may have died as a result of COVID-19 is not, on its own, a reason to refer a death to the Coroner. There may however be other circumstances relating to such a death which do nonetheless justify referral and further investigation by the Coroner.

For those deaths which do proceed to inquest, the Coronavirus Act 2020 has suspended the requirement for a jury inquest even though COVID-19 is a notifiable disease.

The decision as to whether ongoing cases can continue to be heard is ultimately at the discretion of the senior coroner for each area. However the Chief Coroner has suggested that:
• no physical hearing should take place unless it is urgent, essential business and that it is safe for those involved for the hearing to take place. For example, any jury inquest, “of significant length,” listed to start between 31 March and 28 August will be adjourned. Currently those hearings listed from 1 September onwards should remain in the list;
• any hearings that do take place should be public and conducted in court; and
• coroners should, where feasible, use technology (including telephone and video-conferencing applications) to enable the participation of all Interested Persons and their representatives.

The full Guidance Note can be found at:
https://www.judiciary.uk/wp-content/uploads/2020/03/Chief-Coroner-Guidance-No.-34-COVID-19_26_March_2020-.pdf

Resident Admissions
Current Public Health England (PHE) advice permits service users to be admitted to a care home from a domestic setting. Whilst some may have COVID-19, PHE considers that such patients can be safely cared for if all other relevant guidance is followed.

If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period, care can be provided as normal.

This advice does not overrule your general obligation to consider whether you can safely cater for a specific individual’s needs. That assessment must still be undertaken in respect of all new admissions in the normal way.

In respect of admissions from hospital, the onus is on the relevant Discharge Service to clarify with the receiving setting the COVID-19 status of an individual, as well as any symptoms observed during the transfer process.

Whilst national testing for the disease remains limited some hospital inpatients will qualify, for example those receiving critical care for pneumonia. However negative tests are not required prior to an individual’s transfer to a care home.

Further guidance can be found at the following link:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878099/Admission_and_Care_of_Residents_during_COVID-19_Incident_in_a_Care_Home.pdf

Personal Protective Equipment (PPE)
A dedicated helpline has been established for organisations who have immediate PPE supply concerns. The contact details are: 0800 915 9964, or supplydiruptionservice@nhsbsa.nhs.uk

PHE has issued, and regularly updates, its guidance as to the appropriate use of PPE by those working in the sector and for those undertaking specialised or nursing care, specific guidance is available at:

https://www.gov.uk/government/publications/wuhan-novel-coronavirus-infection-prevention-and-control/covid-19-personal-protective-equipment-ppe

For those providing care to service users who are known to be possible or confirmed COVID-19 cases, specific PPE recommendations are provided. For other individuals an assessment is recommended, to be undertaken remotely if possible, to ascertain whether the individual meets the case definition for possible/ confirmed COVID-19 before care is delivered. If an individual is symptomatic and meets the case definition, appropriate PPE should be worn prior to care.

Current guidance states:
• Aprons and gloves remain subject to single use in accordance with Standard Infection Control Precautions.
• Respirators, fluid-resistant surgical masks, eye protection and long-sleeved disposable fluid repellent gowns can be subject to single sessional use, each session ending when the care worker leaves the clinical care setting or exposure environment.
• Once removed, all PPE should be disposed of safely.

In addition, users of face masks should be aware of the HSE’s guidance on face fit testing, full details of which can be found at:
https://www.hse.gov.uk/news/face-mask-ppe-rpe-coronavirus.htm

Medicines
The CQC recognises that the dispensing and checking of Multi-Compartment Compliance Aids (MCAs) is labour-intensive and that pharmacies may withdraw this service during the pandemic. If your supply changes from MCAs to original packs, the CQC recommends that you review and update your risk assessments, policies and procedures, staff training and competency assessments in response.

The key message is that all staff must understand how to administer medicines safely and in a manner which allows for continuity of care.

Additional advice, including in relation to the delegation of tasks to care workers from healthcare professionals, is available at:
https://www.cqc.org.uk/guidance-providers/adult-social-care/covid-19-medicines-information-adult-social-care-providers

DBS Checks
The CQC has issued interim guidance for recruiting staff and volunteers as a consequence of (and during) the pandemic and where the following three factors apply:
– you need staff to start urgently;
– waiting for a full DBS check could cause undue delay; and
– this delay could lead to risks in continuity of your service and impact the safety and wellbeing of people using it.

For emergency roles, you will be able to make use of a fast (and free) Barred List check and, whilst Enhanced Check information will still be processed, this will be issued subsequently.

Helpfully the CQC has confirmed that if employers take reasonable steps to ensure that new staff are recruited in line with the above guidance, they continue to be adequately supported and appropriately supervised and that service users remain safe, it will, “not take a punitive approach.” This means that so long as you record the decisions taken in respect of staff recruitment, together with any risks identified and mitigating control measures, this is likely to influence whether enforcement action is taken in respect of similar breaches in the future.

The CQC’s full advice can be found at:
https://www.cqc.org.uk/guidance-providers/all-services/covid-19-interim-guidance-dbs-other-recruitment-checks

Staff appointments which are not as a result of COVID-19 must continue to be processed in the usual manner.

Conclusion
Despite the relaxation of some regulatory requirements, you need to be mindful that matters potentially of interest to the regulators (and unrelated to COVID-19) will continue to occur. It is imperative therefore that you continue to abide with your pre-existing regulatory and professional obligations to ensure the safety and well-being of both your service users and employees.

A summary of the CQC’s advice, relating to all aspects of social care, can be found at the following link:
https://www.cqc.org.uk/guidance-providers/adult-social-care/information-adult-social-care-services-during-coronavirus-outbreak#restricting-visitors

Should you require any assistance in interpreting or applying current guidance, then please do not hesitate to contact us.

The Health and Safety Executive (HSE) has issued updated guidance for employers as to the RIDDOR reporting requirements where an employee contracts COVID-19.

The guidance confirms RIDDOR reports should only be submitted where:

a. an unintended incident at work has led to someone’s possible, or actual, exposure to coronavirus, this must be reported as a dangerous occurrence. The example given by the HSE is a lab worker accidentally breaking a glass vial containing the virus; or

b. a worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure to the virus whilst at work, this must be reported as a ‘disease’. The HSE gives the example of a healthcare professional who is diagnosed with COVID-19 after treating patients with the virus.

Like all government agencies, the HSE is doing its best to keep pace with the pandemic. However, it seems this latest guidance poses more questions than it answers. For example, the vast majority of people, even those with symptoms, are not yet being tested. In the absence of a definitive test it is impossible to state with any certainty whether an individual actually has COVID-19, or is simply presenting with similar symptoms as a result of another infection.

Equally, given the assumed incubation period of the virus it is difficult to know what amounts to “reasonable evidence,” that an individual contracted the disease whilst at work, given the day to day potential for other routes of transmission. This is a particular challenge for businesses away from the frontline. For example, how will a supermarket know if its employee contracted the virus at work, on their commute or at home?

Conclusion
The examples provided by the HSE are simplistic and helpful for those on the frontline. However, the guidance undeniably creates huge scope for interpretation and it is hoped that further clarification will be forthcoming.

Businesses should continue to report other incidents and dangerous occurrences under RIDDOR as required, but need not report suspected cases of COVID-19 unless they are satisfied that one of the above two requirements are met. If you require any support in interpreting the new guidance, please contact us.