Agreeing to act as a trustee rarely feels like a legal appointment at the time. It is usually a favour to a friend, a parent, or a business associate, and the paperwork tends to arrive long after the decision has been made.

English law, however, treats the position seriously. Whoever holds assets on trust becomes their legal owner while enjoying none of the benefit, and every decision taken must ultimately be justified to the people entitled under the settlement. Where a trustee falls short, the courts can order them to make good the resulting loss from their own resources – which is why understanding the scope of the role matters well before any dispute arises.

What a trustee actually does

Legal title to the trust fund sits with the trustee; the beneficial interest belongs to the beneficiaries named in the will or trust deed. That separation of ownership is the source of every obligation discussed below.

Day-to-day responsibilities vary enormously depending on what the fund contains. Someone administering a modest cash portfolio faces a very different workload from a person managing farmland, a share in a trading company, or a portfolio of let residential property. Common tasks include:

• Identifying and safeguarding all assets belonging to the fund.
• Reviewing how those assets are invested and whether the mix remains suitable.
• Distributing capital or income in line with the terms of the settlement.
• Meeting income tax, capital gains tax, and inheritance tax obligations on time.
• Maintaining accurate accounts and answering reasonable questions from those entitled to benefit.

Trusteeship is not a passive role. Doing nothing is itself a decision, and one for which a trustee can be held accountable.

The core obligations owed to beneficiaries

Acting in the beneficiaries’ best interests

Every power conferred on a trustee exists for one purpose: advancing the interests of those entitled under the settlement. Personal preference, family politics, and sentiment about particular assets carry no weight. Where a decision cannot be explained by reference to beneficiary benefit, it is vulnerable to challenge.

The statutory duty of care

Section 1 of the Trustee Act 2000 requires such care and skill as is reasonable in the circumstances, taking account of any special knowledge the individual has or holds themselves out as having. A solicitor or accountant appointed partly for their expertise is therefore judged more stringently than a lay family member.

This standard applies to investment, acquisition of land, appointment of agents, and insurance decisions, among other functions. Professional trustees cannot plead inexperience; equally, lay trustees cannot rely on their lack of knowledge if they never sought help.

Balancing competing interests fairly

Many settlements create a life tenant entitled to income and remaindermen entitled to capital. Their interests pull in opposite directions – income-producing assets favour one group, growth assets the other. Holding the balance even between them is a distinct obligation, and preferring whoever happens to be most vocal is a recognised route to litigation.

Avoiding conflict and personal gain

No trustee may profit from the position or place themselves where duty and self-interest collide, a rule that applies equally to company directors. Principles running from Keech v Sandford through Boardman v Phipps remain firmly in place. Purchasing an asset from the fund, granting oneself a tenancy, or channelling work to a connected business will all attract scrutiny, however commercially sensible the arrangement appears.

Remuneration follows the same logic. Sections 28 and 29 of the 2000 Act permit payment in defined circumstances, and many professionally drafted instruments contain an express charging clause, but entitlement should never be assumed.

Record-keeping and disclosure

Beneficiaries are generally entitled to see trust accounts and documents recording how the fund has been dealt with. Following Schmidt v Rosewood Trust, disclosure is a matter for the court’s supervisory jurisdiction rather than an absolute right, yet trustees who resist reasonable requests tend to fare badly. Contemporaneous notes explaining why each significant step was taken are the single most effective protection against later criticism.

Investment obligations under the Trustee Act 2000

Wide investment powers came with corresponding safeguards. Before exercising them, and periodically afterwards, trustees must consider the standard investment criteria in section 4: whether a particular investment is suitable, and whether the portfolio is appropriately diversified given the size and purpose of the fund.

Section 5 goes further, requiring proper advice unless it is reasonable to conclude none is needed. That threshold is low, and dispensing with advice on a fund of any substance is difficult to defend. Reviews should happen at sensible intervals rather than only when something goes wrong.

Retaining a single asset – often a former family home or a legacy shareholding – is where problems most commonly begin. Concentration is not automatically a breach, but a trustee who has never asked whether it remains appropriate has little to say when challenged.

What the courts have decided

There has been significant case law in recent years regarding the duties and liabilities of trustees when faced with decisions regarding whether to sell or retain land, incur expenditure on repairs or to take legal action (Brudenell-Bruce v Moore [2014], Jeffrey v Gretton [2011], Cotton v Earl of Cardigan [2014] and Page v West [2012]).

Notably, in Brudenell-Bruce v Moore [2014] a beneficiary with a 49% share in the trust was unhappy with how the trustees had managed the trust’s assets. This beneficiary brought a number of claims against the trustees for allowing a building (forming part of the trust’s assets) to fall into disrepair, failing to re-let a property and allowing a non-beneficiary of the trust to live rent free in one of the properties. Both trustees were found to be in breach of trust, with one trustee ordered to repay the remuneration he had received as trustee and removed as trustee.

Removal and repayment together illustrate how far the court will go. Loss of office is not reserved for dishonesty; serious mismanagement and a breakdown in workable relations can be enough.

In Jeffrey v Gretton [2011] we were reminded that trustees are held to the standard to be expected of a reasonable, prudent man of business, meaning they need to review trust investments and to seek professional advice if they are unsure on whether to sell trust assets (e.g. land or property).

That case concerned a dilapidated house retained and renovated over several years while values stagnated. Criticism attached less to the eventual outcome than to the absence of any structured decision-making along the way.

Cotton v Earl of Cardigan [2014] arose from a long-running dispute over the Savernake estate, where the court sanctioned a sale opposed by the beneficiary in order to clear liabilities threatening the fund as a whole. Preserving an asset for its own sake carried no weight against the financial position. Page v West [2012], by contrast, examined the consequences of trustees pursuing litigation without adequate protection, a reminder that the costs of a failed claim can land personally on those who brought it.

Read together, these decisions point in one direction. Courts rarely second-guess a commercial judgment reached through a proper process, yet they intervene readily where no process existed.

Additional obligations where the fund includes land

Trustees of land hold the powers of an absolute owner under section 6 of the Trusts of Land and Appointment of Trustees Act 1996, subject to duties that do not apply elsewhere. Section 11 requires consultation with beneficiaries of full age holding an interest in possession, so far as practicable, and giving effect to their wishes where consistent with the general interest of the fund.

Disagreement can be resolved under section 14, which allows any trustee or person with an interest to apply for an order. Judges weigh the factors set out in section 15, including the purposes for which the property is held and the welfare of any minor occupying it. Applications of this kind frequently arise when one branch of a family wishes to sell and another wants the property retained, the same deadlock that affects co-owners outside a trust.

When personal liability arises

Breach of trust triggers an obligation to restore the fund to the position it would have occupied had the breach never happened. Compensation is measured by reference to that loss rather than by any gain the trustee made, and there is no requirement to prove dishonesty – a genuine mistake made carelessly is sufficient.

Several features of this exposure catch people out:

• Liability is joint and several, so a claimant may recover the full sum from whichever trustee is most easily pursued.
• A passive trustee who leaves everything to a co-trustee can still be liable for failing to supervise.
• Delegation under Part IV of the 2000 Act does not transfer responsibility; agents must be selected carefully, given proper written policy where required, and reviewed.
• Personal assets are at risk, since indemnity from the fund is lost where the trustee has acted in breach.

Claims frequently surface years later, typically when a beneficiary reaches majority, a life interest ends, or a professional adviser reviews historic accounts.

Defences and protective steps

Exposure is rarely absolute. Well-drafted instruments often contain exemption clauses, and Armitage v Nurse [1998] confirmed these can validly excuse everything short of dishonesty – though they will be read narrowly.

Other routes include:

• Section 61 of the Trustee Act 1925, under which the court may relieve a trustee who acted honestly and reasonably and ought fairly to be excused.
• Informed consent or acquiescence by an adult beneficiary of sound mind, which bars that individual from later complaining.
• The limitation defence in section 21 of the Limitation Act 1980, subject to the well-known exceptions for fraud and for property retained by the trustee.
• Directions from the court under the Public Trustee v Cooper jurisdiction, sought before a momentous or contentious decision is implemented.
• A Beddoe order, obtained in advance of litigation, confirming that costs may properly be met from the fund.

Applying to the court in advance costs far less than defending a claim afterwards, and the protection it provides is difficult to dislodge.

Options open to a dissatisfied beneficiary

Anyone entitled under a settlement who suspects mismanagement should begin by requesting the accounts and an explanation of the decisions in question. Disputes often dissolve once the reasoning becomes visible.

Where concerns persist, remedies range from an account and inquiry through to compensation, tracing of misapplied property, and injunctive relief. Replacement of a trustee may be achieved under section 36 of the Trustee Act 1925, by the court under section 41, or through any express power in the instrument itself. The guiding principle from Letterstedt v Broers remains the welfare of the beneficiaries rather than punishment of the individual.

Reducing the risk before problems develop

Most claims trace back to omissions rather than deliberate wrongdoing. Practical measures that make a real difference include:

• Reading the instrument properly at the outset and identifying exactly which powers exist.
• Recording the reasoning behind significant decisions at the time they are made.
• Obtaining written valuations and investment advice, then acting on it or documenting why not.
• Reviewing the portfolio at regular intervals rather than waiting for a beneficiary to ask.
• Insuring, repairing, and letting property on commercial terms, with any departure explained.
• Communicating openly with everyone entitled to benefit, including those with future interests.

It is a trustee’s paramount duty to generally provide the greatest financial benefits for present and future beneficiaries, but, as case law shows, it is not always easy to know how best to do this and proper advice from reputable experts is essential.

If you feel you would benefit from guidance, as a beneficiary or trustee, please contact the Private Client department at Stone Rowe Brewer LLP. 

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In late January, the Department of Health published a proposal to limit fees charged by lawyers who represent patients for medical negligence. The suggested cap of £25,000 will apply to fixed recoverable costs.

Speaking on behalf of the government, Health Minister Maria Caulfield highlighted the disproportionate rise in fees over recent years. According to an independent review that advises the Civil Justice Council, legal bills for clinical negligence claims have risen, but compensation payments have decreased.

Ministers want costs to be more proportionate than currently. They describe the proposed payment system as fair remuneration for administering claims and representing patients.

Interested parties can voice their opinion(s) until 24th April 2022. Sir Rupert Jackson, a retired justice, is head of the review. Years ago, as Lord Justice of Appeal, he examined costs and recommended changes to legal aid for general civil litigation.

Wide payments gap

During the financial year to April 2021, patients’ legal costs in negligence cases were twice as much as compensation paid. Claimants received an average of £11,198. However, the average bill presented by their lawyers was almost double that, some £22,124.

In other areas of personal injury law, fixed recoverable costs are already commonplace. Speaking in Parliament, Mrs Caulfield – once a nursing sister – suggested the scheme would speed up processing and simplify access to legal support in genuine cases. She also admitted that the NHS could save £454 million over ten years.

The plans facilitate the early exchange of evidence: solicitors on both sides will be eligible for efficiency incentives but liable to sanctions if their performance falls short. In particular, the new scheme regime encourages quick agreements on the causes, liability and amount due, or quantum.

Two-track system

Legalities would follow either a standard or a light track depending on the complexity of each case. Two meetings would take place between the parties involved, under the guidance of a neutral barrister. The aim would be to settle outside court wherever possible without costly full hearings.

Claims have been taking progressively longer to settle. Under the new scheme, it should take no longer than forty-four weeks to progress from the service of an initial claim letter to the mandatory neutral evaluation stage.

The plans outline using template letters and model expert reports in the initial presentation of evidence. Next, the defendant, i.e. healthcare provider, must acknowledge receipt of the claim within three weeks. Then, within six months, they would have to admit liability and suggest a settlement – or notify their intention to contest the claim. Finally, patients or their legal representatives would have two weeks to confirm receipt and six weeks to respond fully to the defendant’s reply.

Patients’ legal costs are usually awarded against the defendant if found negligent. Under the standard track, the cap will be £6,000 plus 20 per cent of the amount awarded in damages. The light track limits fees to £1,500 plus 10 per cent of the award.

In both cases, the damage payment receivable by successful litigants remains intact. Most legal action is under a no-win-no-fee arrangement.

Cases involving three or more expert witnesses or multiple defendants will not be subject to the above limits. Exceptions also apply to stillbirths, neonatal deaths and when the defendant highlights the restriction as a potential issue, given the nature of the alleged mistreatment.

Mixed reaction

Predictably, lawyers’ groups recorded their dismay at the announcement. Concerns were that the plans could stop victims of medical negligence from receiving fair compensation.

Lawyers questioned why the government had not dealt more robustly with unnecessary and problematic delays in responding to claims. Handling claims more efficiently would decrease costs. Furthermore, while the streamlined process limits the number of experts using model reports, there is no limit to the fees expert witnesses could charge.

The Association of Personal Injury Lawyers depicted a significant hurdle for patients to negotiate. Its spokesperson, Suzanne Trask, accused the government of failing to address patient safety issues and doing nothing to address the financial cost and human misery suffered by victims of medical mistreatment. She emphasised that negligence settlements were only a tiny proportion of the NHS budget.

In contrast, one defence group considered that the proposals did not go far enough. It urged a rapid rollout and extra measures to minimise the adversarial face of litigation.

Ministers countered that the proposals would not affect access to justice for injured patients.

Stone Rowe Brewer LLP provides high-quality legal services for individuals and businesses. Our private client lawyers are practical, proactive and friendly. If you want to learn more about the video-witnessed wills legislation extension or have any general queries, please call us on 020 8891 6141. 

Driving whilst using a mobile phone for texting or calling has been illegal since 2003. However, the law did not cover holding a mobile phone which allowed using social media or playing a game. 

As of 2022, it is illegal to hold a mobile phone whilst driving. Breaking this law could lead to a £200 fine and 6 points on your licence.

The only reason you should use a mobile phone whilst driving is to call 999 or 112 when it is unsafe or impractical to stop. Otherwise, you need to be parked in a safe location.

Why change the law?

In 2019 a driver was caught filming an accident. The 51-year-old successfully appealed the decision based on the fact that he was not using the phone as a communication device.

Following the trial, two High Court judges said that the law has not been able to keep up with the development of mobile phone technology.

You are four times more likely to cause an accident when using a hand-held mobile device. So this change in the law should protect drivers from becoming distracted while driving.

Timeline of using mobile phones while driving UK laws

As a new technology mobile phones and driving have always been at odds with legislation.

At first, the use of phones in cars was a luxury. Entering the 2000s mobile phone use had become commonplace, and the dangers of using such devices became well known. 

Timeline of mobile phone use when driving laws in the UK:

• December 2003, the first laws were introduced that restricted the use of mobile phones for communication whilst driving.
• In 2007, drivers who used a handheld mobile phone while driving received a £60 fine and three points on their licence.
• By 2013 the fine increased to £100.
• From March 1st 2017 the penalty doubled. If you were caught driving while using a mobile phone in the UK you get a £200 fine and six points on your licence.
• In 2022, a loophole in the law where you can drive, take photos, videos or play games has been closed. If you drive and use a handheld device in any capacity you could receive a £200 fine and six penalty points on your licence.

Transport Secretary Grant Shaps commented on the law change:

“Too many deaths and injuries occur while mobile phones are being held.

“By making it easier to prosecute people illegally using their phone at the wheel, we are ensuring the law is brought into the 21st century while further protecting all road users.

“While our roads remain among the safest in the world, we will continue working tirelessly to make them safer, including through our award-winning THINK! campaign, which challenges social norms among high-risk drivers.”

The law change should make the roads safer and make it easier for culprits to be prosecuted.

Stone Rowe Brewer LLP provides high-quality legal services for individuals and businesses. Our private client lawyers are practical, proactive and user friendly. If you want to learn more about the video-witnessed wills legislation extension or have any general queries, please call us on 020 8891 6141. 

During the pandemic, the government introduced legislation allowing the witnessing of wills over Skype and Zoom. Earlier this week, the government announced an extension of this legislation until January 2024.

For Dominic Raab MP, Lord Chancellor and Secretary of State for Justice, the extension came as a ‘common sense measure’, giving vulnerable people the knowledge that their wills will be recognised, even if they are isolating and forced to have them witnessed via video. 

He said: “‘I want people to be able to use technology safely and securely to ensure they can record their final wishes no matter the circumstances’. 

This legislation, implemented last year, amended the Wills Act 1837, stating wills must be signed in the presence of at least two witnesses, either physically or virtually. However, wills still need to be signed by two witnesses who are not its beneficiaries, and electronic signatures are not allowed. 

The Law Society found that since the temporary measure’s implementation, around 14% of legal professionals involved in making a will used software such as FaceTime or Zoom to witness wills.

Stephanie Boyce, the Law Society’s president, said: “Solicitors have bent over backwards to ensure their clients have been able to make valid wills despite the restrictions during the pandemic. Those who have used video witnessing have told the Law Society it has been a useful option to have – to help vulnerable people set their affairs in order when making a will in the presence of witnesses is not possible.

‘The Law Society continues to take the view that the most effective reform of the law would be to give judges powers to recognise the deceased’s intentions even where their will may not have been witnessed, in line with the Wills Act.

“We look forward to the forthcoming Law Commission report on wills reform which we hope will expand on this and other issues to improve will making in England and Wales.”

The law commission is now considering whether to make this temporary measure permanent.

Stone Rowe Brewer LLP provides high-quality legal services for individuals and businesses. Our private client lawyers are practical, proactive and user friendly. If you want to learn more about the video-witnessed wills legislation extension or have any general queries, please call us on 020 8891 6141. 

New versions of several critical conveyancing forms have been created to expand the amount of property information available upfront.

Trade and representative bodies in the legal, estate agency, surveying and property management sectors have launched upgraded versions of the LPE1 (Leasehold Property Enquiries), LPE2 (Consumer summary) and FME1 (Freehold Management Enquiries) forms.

Fourteen industry bodies, including The Conveyancing Association and The Law Society, encourage their members and member firms to use these new upgraded versions from 11 January 2022.

Several further questions have been added to the third version of the LPE1 form, including establishing whether there are restrictions on keeping parking or pets. 

In addition, the form asks if an external firewall or a fire safety assessment has been undertaken and whether any urgent works are required. Hopefully, this will enable those marketing the property to identify material facts around cladding more easily. 

Stephanie Boyce, the Law Society president said: “We are pleased to see the launch of the new versions of these important property forms.

“Making key information about a property available to consumers and those who work in the conveyancing system is beneficial in terms of identifying any potential issues at an early stage and speeding up property transactions.

“The updated LPE1 form should allow for crucial information about fire safety and any urgent remediation work required to be identified as soon as possible.”

Director of delivery at the Conveyancing Association, Beth Rudolf, stated: “The industry has committed to ensuring the forms are up to date and continually assessed to make sure they ask for all the necessary information. These new iterations of the forms do just that, and particularly in light of the ongoing issues many leaseholders are having with their building’s fire safety, it is clearly very important that all stakeholders have full upfront and transparent information on this aspect of the property.

“We’ll continue to review these forms to make sure they are fit for purpose going forward and in particular as there becomes greater clarity over the need for external wall assessments and access to them.”

CEO of the Association of Residential Managing Agents (ARMA), Nigel Glen went on to say: “We are pleased with the comprehensive additions to the forms, in particular, the addition of the – usually belated and highly emotive – a matter of pets and the LPE1’s request for information on building safety. We hope the latter will help towards freeing up leaseholders to sell on properties where the fire risk is minimal. We also welcome the addition of the UPRN field as a means of encouraging its adoption across the residential building stock, the benefits of which have long been known.”

At SRB, our experienced residential property solicitors offer a comprehensive legal service for clients buying or selling a home. In addition, we can also check and provide impartial advice on mortgage loans. 

Notably, we are not a high-volume bucket type of conveyancing shop with paralegal staff, but you can count on quality and expertise with us. 

Contact us on 020 8891 6141

The UK government introduced the Product Security and Telecommunications Infrastructure Bill (PSTI) at the end of November, requiring manufacturers, distributors and importers of digital tech products which connect to the internet or other products to ensure they meet new cyber security standards. Heavy fines will fall on those who fail to comply.

The Bill aims to protect consumers’ phones, tablets, smart TVs, fitness trackers and other internet-connectable devices from attacks by hackers. It gives the government the power to ban all default passwords, force companies to be transparent about their measures to fix security flaws in connectable products, and create better systems for reporting issues found in those products.

According to research, four in five manufacturers of connectable products don’t implement the correct security measures; the Bill will outlaw the sale of connectable products in the UK that don’t adhere to these baseline security requirements. For companies that don’t comply, the Bill includes fines up to £10 million, or up to 4% of global revenue.

The Bill will propel the production of more reliable and faster broadband and mobile networks, making it easier for operators to share infrastructure and upgrade. In addition, the reforms will promote more efficient, collaborative negotiations with landowners hosting the equipment to reduce lengthy court cases that prevent digital connectivity from advancing. 

Julia Lopez, Minister for Media, Data and Digital Infrastructure, said:

“Every day hackers attempt to break into people’s smart devices. Most of us assume if a product is for sale, it’s safe and secure. Yet many are not, putting too many of us at risk of fraud and theft.

“Our Bill will put a firewall around everyday tech from phones and thermostats to dishwashers, baby monitors and doorbells, and see huge fines for those who fall foul of tough new security standards.”

The use and ownership of connected tech products have increased in recent years; on average, there are nine in every UK household. However, although people assume these products are secure, only one in five manufacturers have correct security measures installed within their connectable products. 

Cybercriminals are targeting these products in increasing numbers; in the first half of 2021, there were 1.5 billion attempted breaches of the Internet of Things. 

Although the makers of digital tech products must adhere to rules stopping them from causing people physical harm, i.e. by electric shock and overheating, there is no regulation to protect consumers from the damage caused by cyber breaches, including theft of personal data and fraud.

The PSTI gives ministers the power to introduce more stringent security measures for device makers. For example:

• Easy-to-guess default passwords that come preloaded on devices are outlawed, i.e. ‘admin’ or ‘password’, which hackers target. All preloaded passwords must be unique and not resettable to any universal password. 
• Connectable product manufacturers must tell customers at the point of sale and provide them with updates about the minimum amount of time a product receives patches and essential security updates. If a product does not have security updates, the customer must be made aware. This will increase customer awareness about potentially vulnerable purchases, helping them make better-informed decisions. 
• Manufacturers have to provide a public point of contact. This new rule will make it easier for security researchers to report when they find bugs and flaws in products. 

The government will designate a regulator once the Bill comes into action. The regulator will coordinate this new cyber security regime and have the power to fine companies up to £10 million of four per cent of their global turnover for non-compliance and up to £20,000 per day in cases of ongoing contravention.

The regulator will also have the power to issue notices to companies stating their requirement to comply with the new security requirements, recall their products or stop their sale altogether. 

The new laws won’t just apply to manufacturers but also to physical shops and online retailers.

Retailers won’t be able to sell products to UK customers unless they meet the security requirements and will have to disclose information about their security updates to their customers. 

The Bill applies to ‘connectable’ products; all devices with access to the internet, inducing smartphones, smart TVs and games consoles; it also applies to products that can connect to multiple devices but not directly to the internet; i.e. smart light bulbs and fitness trackers. 

NCSC Technical Director Dr Ian Levy, said:

“I am delighted by the introduction of this bill which will ensure the security of connected consumer devices and hold device manufacturers to account for upholding basic cyber security.

“The requirements this bill introduces – which were developed jointly by DCMS and the NCSC with industry consultation – mark the start of the journey to ensure that connected devices on the market meet a security standard that’s recognised as good practice.”

Stone Rowe Brewer LLP provides high-quality legal services for individuals and businesses. Our employment lawyers are practical, proactive and user-friendly. If you want to learn more about the new statutory right for carer’s leave or have any general employment law queries, please call us on 020 8891 6141.

The government will introduce a new statutory right of up to one week of unpaid leave for carers. This legislation resulted from the 2020 consultation, which recognised the challenge of juggling work and caring responsibilities.

Reasoning behind the legislation

The Conservative party addressed several workplace inequalities in its 2019 election manifesto. From incorporating new rights regarding the concept of flexible working to a proposal to extend leave entitlement to unpaid carers, they discussed various policies that UK employment law could include.

The coronavirus pandemic’s impact on many individuals and families, coupled with the UK’s ageing population, has highlighted the necessity of addressing this inequality. While introducing this new statutory right could be costly for businesses, the government views this intervention as essential to ensure unpaid carers have full access to the labour market. The costs to businesses are worth the potential benefits, such as increased employee loyalty and satisfaction the policy may bring. This should reduce staff turnover and increase productivity which will have long term cost-effective benefits for businesses.

The intention is that unpaid carers could utilise their carer’s leave to provide the care themselves or make arrangements to provide care for a dependant.

Eligibility

Employees who have a partner, civil partner, spouse, parent, child or household member who relies on them for care will be eligible to take carer’s leave. They can exercise carer’s leave from their first day of employment.

The dependent must have a long-term care need. This will be defined in the new legislation as a disability as defined in the Equality Act 2020, a long-term illness or injury, or issues relating to old age. Some limited exceptions will be accepted, such as situations where the person being cared for is terminally ill.

Exercising the right to statutory carer’s leave

Employees will be able to ‘self-certify’ their eligibility to take carer’s leave. If employees abuse the system, employers can deal with this in the same way as any disciplinary matter.

In the drive towards flexible working, employees will be able to take statutory carer’s leave in half days, individual days or a one-week block. The notice period must be twice the length of the leave plus one day to take it.

Employers cannot deny a carer’s leave request but can request to postpone it on limited grounds. For example, if they believe it will disproportionately affect their business operation.

It will be automatically unfair to dismiss an employee due to or in connection with them exercising the legislation.

What this means for workplace equality

Introducing the right for employees to claim carer’s leave is part of the government’s strategy to address workplace inequalities.

The government hopes to encourage more unpaid carers to enter or remain in the workforce by giving them the option of taking leave. As the UK deals with an ageing population and staff shortages, this option may become essential.

Implementation of the new legislation

The government says it will introduce the right to carer’s leave as a day 1 statutory employment right when parliamentary time allows. In light of these upcoming changes, employers should undertake necessary preparations in amending or updating their written policies.

Stone Rowe Brewer LLP provides high-quality legal services for individuals and businesses. Our employment lawyers are practical, proactive and user friendly. If you want to learn more about the new statutory right for carer’s leave or have any general employment law queries, please call us on 020 8891 6141.

The government’s online portal, ‘Official Injury Claim‘ (OIC) went live at the end of May. The portal covers low-value injury claims caused by road traffic accidents on or after 31st May 2021, where compensation for injuries is under £5000.

Anyone can use the OIC without legal advice. However, the system is challenging to navigate with a 64-page user guide and many more pages of legal rules; if it’s concluded that you have suffered a whiplash injury lasting say 6 months, you would be set to receive £495.

In addition, the system is ambiguous; if you have suffered another type of injury alongside whiplash, lasting for 6 months, the new scheme doesn’t provide information about deciding on the number of damages in that situation. The government decided to leave this problem to the courts. Whilst a working party has been set up to look into what cases to take forward, it will take months for test cases to progress through the court system.

Is the portal working?

Whilst the number of RTA claims filed has fallen since the portal’s introduction, there are fears that many unrepresented people have not materialised.

The Ministry of Justice recently published its quarterly figures for the three months since launching the Official Injury Claim at the end of May: 41,387 or 45,718 claims were from individuals with legal representation.

David Parkin, the deputy director for civil justice and law at the MoJ, speaking at the Motor Accident Solicitors Society conference at the end of October, said there used to be thousands of whiplash claims. However, with ongoing covid related issues and fewer motorists, direct comparison is particularly hard.

Even though litigants in person are the portal’s target audience, and individuals can’t make claims under £5000, injured individuals appear content to instruct a lawyer to represent them through the process.

Unrepresented individuals brought just 4,331 claims, whilst claims made through law firms amounted to 30,658 claims and 10,622 through a different business structure.

Before the portal’s introduction, some feared insurers would be more inclined to deny liability if claimants were unrepresented. While the low number of LiPs makes it challenging to answer this, compensators admitted in part of 21,680 claimants during the quarter, of which 2,314 involved unrepresented claimants and 19,366 represented claims; just 4% of the 2,447 cases denied liability in full, involved litigants in person.

Parkin said: ‘Transparency and scrutiny are absolutely vital in this online claims system. Our perception is that the system launch and the first three months have been relatively smooth for a government-associated IT system. It is not without teething problems but it seems to be working relatively well.’

The issue remains surrounding compensation for injuries that don’t fall within the criteria for the new tariff system for whiplash; just 33% of claims were tariff-only, with 61% representing a mixture of multiple injury claims.

David Bott, the owner of north-west claimant firm Bott & Co, also spoke at the MASS conference. He said: ‘Up until the Court of Appeal says what damages are there is going to be a range of different behaviours. All the way through the process we cannot say to our clients what the value of the claim actually is – both sides are in this awkward position where nobody knows that value of a claim.’

Speaking at the annual MASS conference, new chair Sue Brown said: ‘It is unclear at this point whether [the low self-representing figures] are because claimants are deciding not to pursue claims, or whether it is because they are unable to pursue their claims without representation, unable to find the OIC or sufficient sources of information or advice, or for some other reason.

‘It is early days but OIC seems to be working reasonably well for professional users, although there are real problems with A2A for both claimant representatives and insurers which need to be resolved. The system will be fit for purpose only when it works for everybody.’

If you want to find out whether your claim can go through the OIC, contact us on 020 8891 6141 or email us here.

At Stone Rowe Brewer LLP our reputation is based on continually exceeding our customer’s expectations and delivering results in a straightforward, honest and open manner. We are proud to be an accredited practise of the professional body that oversees this area of the law (APIL-Association of Personal Injury Lawyers).