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Deputy Day London 2015
#FTDepu(es
Andrew Ritchie QC, 9 Gough Square
Chair’s Welcome & Introduc(on
Sa@nder Hunjan QC No.5 Chambers
Satinder Hunjan QC
Call : 1984 Silk : 2002
Recorder: 2003 Deputy High court Judge : 2008
The Approach to Capacity and Legal Update
INTRODUCTION
Development of the law
Litigation economics
“New ways” and “old problems”
Legal Professional Privilege
5
Mental Capacity Act 2005
The law on procedure following Dunhill
6
The Mental Capacity Act provides a framework to empower and protect people who may lack capacity to make some decisions
for themselves.
7
Five Key Principles of the Act
8
§ Every adult has a right to make his or her own decisions and must be assumed to have capacity to make them unless it
is proved otherwise. § A person must be given all practicable help before anyone
treats them as not being able to make their own decisions. § Just because an individual makes what might be seen as an
unwise decision, they should not be treated as lacking capacity to make that decision.
§ Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
§ Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and
freedoms.
9
Distinction between protected party and protected beneficiary.
10
The approach to the determination of capacity.
11
Masterman – Lister v. Brutton & Co (No 1 & 2) [2002] EWCA Civ 1889 [2003] 1 WLR 1511.
12
Capacity is issue specific.
13
Dunhill (a Protected Party by her Litigation Friend Tasker) v. Burgin [2014] UKSC 18
14
CARE AND CASE MANAGEMENT
Loughlin v Kenneth Dal Singh and others (2013) EWHC 1641
(QB)
Wright v Sullivan (2005) EWCA Civ 656
15
ACCOMMODATION AND ROBERTS v. JOHNSTONE
Roberts v. Johnstone continues to be problematic in cases with
modest life expectation – development of the law:
1. Development of the law
2. Purchase by the Defendant of the accommodation and use of
indemnities
16
ACCOMMODATION
50% deduction of uninjured accommodation costs
Deduction for parental use:
1. Lewis v Royal Shrewsbury’s Hospital NHS Trust (29.1.07)
2. Iqbal v Whipp’s Cross University Hospital NHS Trust (2006) EWHC
311(QB)
3. Whiten v St George’s Healthcare NHS Trust (2011) EWHC QB
Future accommodation moves as in the un-injured state
17
PERIODICAL PAYMENTS
Periodical payment reports
Periodical payments with contributory negligence
Periodical payments: indemnities and “Peters” promise
Periodical payments not restricted to care and case management – use of
periodical payments for loss of earnings, Court of Protection and related items
– and other “mean” annualised costs.
Determined by an event – example: Claimant is no longer a protected party.
18
GRATUITOUS CARE PROVIDED BY THE TORTFEASOR
Hunt v. Severs [1994] 2 AC 350
“Contract” entered into by the tortfeasor for the provision of
“gratuitous care” – suggested negligent for the Claimant not to
do so.
Law Commission recommendations
19
LOST YEARS
Totham v King’s College Hospital NHS Foundation Trust (2015) EWHC 97 (QB)
20
HYDROTHERAPY (AQUATIC THERAPY OR AQUATIC PHYSIOTHERAPY)
Evidence is critical; in particular, in respect of the provision of hydrotherapy at home.
21
DISCOUNT RATE AND ADJOURNMENT
Discount rate - no news
Adjournment of issue – no takers
22
LIFE EXPECTATION AND TABLE 28 – Term certain
Table 28 (term certain) or adaptation of Table 1 (or2) or a
combination
Whiten v St George’s Healthcare NHS Trust (2011) EWHC
QB
23
PENSION LOSS
NEST – Future pension contributions 2-8% and opt out
24
AVERAGE EARNINGS
ASHE
Self- employed or similar earnings and profits
25
THE FUTURE
Legal aid
ATE
One way costs shifting
Litigation outside the Courts
Increased court fees
Limitation moratorium
Costs budgeting
26
28
Tracey Norris-Evans, Withy King & Dan Benham, RSAW
www.withyking.com
Construc@on & Contracts: Successful Project Management
7TH MAY 2015
By Tracy Norris-‐Evans & Dan Benham
Deputy Day London 2015
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www.loyn.co.uk
Contents of Presenta(on • What is construc(on & who should be involved?
• Benefits of employing a design team • Typical life-‐cycle of a project
• CDM Regula(ons 2015
• Contracts & Insurance
Introduc(on
What is Construc(on? • Carrying out any building work (Internally or Externally)
• Complicated industry
• Many preconcep(ons
• Huge number of piUalls
Construc(on
Who should be involved? • Not just as simple as employing a builder!
• Planning submission & regula(ons
• Building Control Compliance
• Construc(on Design Management (CDM) Regula(ons 2015
Construc(on
Employing a Professional Design Team • Typical Design Team Structure
Construc(on
Deputy Protected Party Occupa(onal Therapist
Architect Structural Engineer M&E Engineer
Environmental Control Specialist Principal Designer
Planning Consultant
Case Manager
Quan(ty Surveyor
Why employ a Professional Design Team ? • Depu(es professionally advise the client
• Breaches of Statutory Law & Regula(ons
• Create places that enhance the client’s well-‐being
Construc(on
Enhancing the client’s well-‐being
Construc(on
Professionally advising the Deputy • Let your professional design team assist you throughout the life-‐cycle of
the project
• Let your design team guide you through all the ‘hazards’ to ensure compliance with all statutory regula(ons.
Construc(on
Life-‐cycle of the project & the role of the Design Team • FEASIBILITY:
• Is the brief possible? • Is the site selected suitable? • Are the ground condi(ons suitable for the works proposed?
• What are the costs of the project? • Pre-‐applica(on submission with LPA • CDM regula(ons 2015
Construc(on
Life-‐cycle of the project & the role of the Design Team • PLANNING:
• Applica(on required for nearly all projects • Listed building consent? • Conserva(on area consent? • Design and Access Statements • Highways / Drainage / Environment Agency • Ecology – bats / birds – criminal offence • CDM regula(ons 2015
Construc(on
Life-‐cycle of the project & the role of the Design Team • DETAILED DESIGN:
• Building regula(ons submission • Compliance with Bri(sh Standards • Numerous regula(ons, e.g.
• Fire safety • NICEIC • Radon • Structures
• CDM regula(ons 2015
Construc(on
Life-‐cycle of the project & the role of the Design Team • TENDER ISSUE:
• Full tender drawings & specifica(ons • Bills of quan((es • Schedule of works • Type of contract • Pre-‐construc(on Informa(on • Site hazards and Risks
Construc(on
Life-‐cycle of the project & the role of the Design Team • SITE:
• Contract administrator • Inspec(on of contractor’s work • Monitoring quality • Agreeing all changes with contractor • Monthly payments rela(ng to progress • Compliance with building regula(ons • CDM regula(ons 2015
Construc(on
Constantly changing regula(ons • Planning regula(ons
• Building control regula(ons (Part L / Part K)
• CDM Regula(ons 2015
Construc(on
What is CDM 2015 ?
• Construc(on Design Management Regula(ons
• Covers health & safety within Construc(on
• Applies to the design stages as well as the construc(on phase and post occupa(on
• Bound by criminal law
CDM 2015
Context to CDM 2015
• Since CDM regula(ons have come into force: • Significant reduc(on in numbers & rates of injuries over the last 20 years
• Remains a high risk industry
• Accounts for 31% of all fatali(es to employees
• Small sites and refurbishment projects are s(ll a major area of concern
CDM 2015
The objec(ves
• Improve health & safety on all construc(on projects, especially small works
• Maintain and improve work protec(on
• Meet bejer regula(on principles
CDM 2015
Where does it apply?
• CDM regula(ons apply to all construc(on jobs…
However...big implica(ons on a project are required when there is…
• More than one ‘trade’ on site!
• So now applies to all projects!
CDM 2015
Domes(c Projects
• CDM 2015 now applies to all domes(c projects
• Failure to comply is a criminal offence and might result in imprisonment!
CDM 2015
What does this mean?
• More onerous steps for the Deputy
• Depu(es are not equipped for this • At any stage on a project (feasibility to comple(on) a Principal
Designer (PD) is to be appointed by the Deputy
• Roles of the Deputy must be passed onto PD • A Principal Contractor must be applied for the construc(on phase
CDM 2015
What is the Principal Designer?
• Replaced the role of CDMC from the previous regula(ons
• Ensure risks are eliminated or controlled through the design work process
• Passing informa(on to the contractor before they provide a price
• Ensure all design team members comply with their du(es
• Assis(ng the client in prepara(on of the Pre-‐construc(on informa(on
CDM 2015
What is the Principal Designer?
• No(fy the HSE under the F10 form
• Prepare the health and safety file for the project
• Review risk registers of all design team members
• Ajend design and site mee(ngs
CDM 2015
What is a Health & Safety file?
• A document selng out different aspect of the project including: • Defined contents list provided by HSE • As built drawings • Cer(ficates • Residual risks • Informa(on for future maintenance • Informa(on for future building development • Contact informa(on
CDM 2015
Consultant Contracts
The Contracts
Consultant Contracts Small role : check T&Cs that they include: • Relevant standard of care In carrying out the services the consultant shall use all the reasonable skill, care and diligence to be expected of a qualified and experienced member of the consultant’s profession undertaking the services on work similar in scope and character to the Project. • No unusual or unacceptable caps or limita(ons of the consultant’s liability. • Price is correct. • The correct services to be carried out by the consultant • Payment regime is correct and acceptable Larger role : outline terms in a contract.
The Contracts
The JCT Contract JCT publishes lots of contracts. Always • Refer to the full (tle of JCT • Use the 2011 version
Building Contracts
The Contracts
Minor Works Building Contracts For simple projects. There are 2 x building contracts in this category: • Minor Works Building Contract (MW) • Minor Works Building Contract with contractor’s design (MWD)
• Use MWD where simple element of design to be carried out by contractor
Building Contracts
The Contracts
Intermediate Building Contracts JCT publishes two building contracts in this category: • Intermediate Building Contract (IC) • Intermediate Building Contract with contractor’s design (ICD)
Intended for mid-‐sized projects
Sub-‐Contracts • Contractor is responsible for its sub-‐contractors
• Consider collateral warran(es – sub-‐contractor carrying out cri(cal part of works or design of part of works
• Impera(ve to secure the relevant product guarantees
• Design errors; • Defec(ve workmanship; • Delay and/or addi(onal costs caused by the fault of one or more
par(es, or by factors beyond the par(es’ control; • Insolvency of one or more par(es; • Accidental or deliberate damage to the works under construc(on; • Varia(ons (changes made to the project aper the design is finalised or
during construc(on)
Common PiUalls
• Design – tradi(onal build basis: responsibility is not with the contractor but rests with design consultant
• Varia(ons – evidence in wri(ng and agree price ↑costs and delays
in completion • Funding – planning the draw down with the IFA
• LA disabled grant
Common PiUalls
• Clause determining how no(ce should be served eg. clause 1.6 of JCT Minor Works Contracts
• Failure to comply with no(ce provisions: severe consequences
No(ce Provisions
Several years may elapse before a building defect comes to light Limita(ons 6 years Contract 12 years Deed Par(es to the Contract
Deed or Simple Agreement?
Typically: Professional indemnity insurance Product liability insurance Employer’s liability insurance Public liability insurance All works and exis(ng structures insurance
Insurances
• Physical damage to works and site materials
• Maintained un(l prac(cal comple(on
• Typically taken out by contractor
All Risks Insurance
• v liability arising from professional negligence eg. negligent design, surveying, project management or contract administra(on.
• Maintained throughout the insured’s period of liability not just un(l the end of project.
Commercial view if contractor doesn’t have it.
Professional Indemnity Insurance
• Covers injury to TP’s or damage to their property arising out of products supplied by a business
Product Liability Insurance
Public Liability Insurance
• Covers liability arising from: – Death or personal injury to Third Par(es – Damage to property of Third Par(es
• Cover for injury or disease to employees arising out of their employment
• Only necessary if nature of project requires >statutory minimum
Employers’ Liability Insurance
• Design, planning, strategy & Cost • Site Condi(ons – surveys? eg. asbestos survey • Timescales • LA disabled grant • Collateral warran(es • CDM co-‐ordinator • Tender documents • Liaise with the Quan(ty Surveyor • Administrator of the building contract • Snagging
Lead Consultant -‐ Architect
When it all comes together!
When it all comes together!
When it all comes together!
When it all comes together!
The Pressure for Transparency – Issues for Trustees & Deputies
George Hodgson
Transparency – the key pressure points
§ New reporting needed for tax information exchange
§ New HMRC regulations 15 April 2015.
§ New registration requirements for AML purposes
§ New corporate register 1 Jan 2016.
§ Increased pressure from banking sector keen to minimise risks
§ Growing reports of difficulties opening new accounts.
74
Automatic Exchange of Information
AEOI – Automatic Exchange of (Tax) Information.
FATCA – Foreign Account Tax Compliance Act - US legislation.
IGA – Inter Governmental Agreement.
§ UK/US Treaty related to FATCA that implements FATCA in
UK.
CDOT – Crown Dependencies (and) Overseas Territories.
§ FATCA style IGAs between UK & CDs and Ots.
CRS – Common Reporting Standard.
§ New global standard for AEOI.
75
CRS
§ New global standard for AEOI.
§ 91 countries now committed to exchange by end of 2018.
§ All EU Member States signed up via DAC (Directive on
Administrative Co-operation).
§ Switzerland, CDs, OTS signed up.
§ China, Brazil, Russia signed up.
§ US sticking with FATCA.
§ No clear commitment from Panama, Cook Islands, Nauru,
Vanuatu & Bahrain.
76
CRS vs FATCA
77
FATCA CRS
Registrations ! "
Scan for Citizenship ! "
Scan for Tax Residence " !
Owner documented status ! "
AEOI - Key Dates
78
FATCA CDOT CRS
Registrations 01/01/2015 n/a n/a
1st Reporting period ends 31/12/2014 31/12/2015 31/12/2016
Report to HMRC 31/05/2015 31/05/2016 31/05/2017
Information exchanged 30/09/2015 30/09/2016 30/09/2017
Trusts & AEOI
The following are the same for all types of AEOI: § All trusts are deemed to be entities.
§ Trusts are either Investment Entities - a type of Financial Institution (FI) - or Non Financial Entities (NFE).
§ What sort of entity a trust is depends on what assets are in the trust and who ‘manages’ the trust.
79
Trusts & AEOI
80
The Basics:
§ Under FATCA trusts that are FIs should have registered with the IRS - for CRS there is no equivalent need to register.
§ Under both FATCA and CRS FIs must either report or make arrangements for someone else to report for them.
§ Trusts that are NFEs don’t need to register or report, they will be reported on by any FIs they use.
Trusts & AEOI
81
If the trust gets most of its income from financial assets, it will be a Financial Institution where: § The trustee is a FI.
§ The trustee engages FI to manage the trust. § The trustee engages FI to manage the financial assets of the
trust.
Trusts & AEOI
82
What determines if trust is a Financial Institution? Test 1: Is the entity (i.e. the trust) carrying on business and is 50% or more of the entity’s gross income attributal to trading in money market instruments, foreign exchange and a range of other financial instruments, portfolio management or the investment and administration of funds? NB - Trust companies will normally be FIs on this test.
Trusts & AEOI
83
What determines if trust is a Financial Institution?
Test 2: Is more than 50 per cent of the trust’s income attributable to investing, reinvesting or trading in financial assets? If YES: Go to Test 3 If NO: Trust is NFE Test 3: Is the trust ‘managed’ by a Financial Institution? If YES: The trust is a Financial Institution (an Investment Entity) If NO: Trust is NFE
Is the Trust Managed by an FI?
§ If the trust holds largely financial assets and the trustee is a corporate trustee, the trustee is likely to be an FI and this will make the trust an FI for AEOI purposes.
§ If the trustee is a ‘professional’ (i.e. he is paid) but he is appointed as an individual, the trust is not necessarily an FI.
§ If the trust hold largely financial assets and the trustees appoint a discretionary fund manager to manage the trust’s assets, the fund manager is likely to be an FI and this will make the trust an FI for AEOI purposes.
§ If the trustees buy retail investment products (unit trusts, insurance bonds etc…) they have not appointed a discretionary fund manager.
84
Is the Trust Managed by an FI?
What if the trust company does not charge? § If a related entity of the trust company earns income from the
trust, some of that income will be deemed to attributable to the trust company.
§ This will make both the trust company and the trust FIs.
85
Options for a trust which is FI?
Option 1: Trustee Documented trust (FATCA & CRS) § Trustee is a Reporting FI (because it is corporate trustee). § Trust becomes a non-Reporting FI. § Trust does not need to register (for FATCA) or report (for either
FATCA or CRS). § Trustee will register (for FATCA) and report on trust (for both
FATCA and CRS).
86
Options for a trust which is FI?
Option 2: Trust Reports as a FI (FATCA &CRS)
§ Must register with IRS and obtain a GIIN (for FATCA).
§ Must report as an FI via HMRC (for both FATCA and CRS).
§ Must declare status as a Reporting FI to all FIs it has accounts with (and provide GIIN/TIN).
§ Can use third party service provider, but compliance responsibilities remain with trust.
§ NB. FATCA options of Sponsored Investment Entity & Owner Documented FI are not available under CRS!
87
Who gets reported?
CRS
“Reportable Jurisdiction Person” means an individual or Entity that is resident in a Reportable Jurisdiction under the tax laws of such jurisdiction
“Reportable Person” means a Reportable Jurisdiction Person other than: (i) a corporation the stock of which is regularly traded on one or more established securities markets; (ii) any corporation that is a Related Entity of a corporation described in clause (i); (iii) a Governmental Entity; (iv) an International Organisation; (v) a Central Bank; or (vi) a Financial Institution
“Reportable Account” means an account held by one or more Reportable Persons or by a Passive NFE with one or more Controlling Persons that is a Reportable Person
88
FATCA
“U.S. Person” means a US citizen or resident individual…
“Specified U.S. Person” means a US Person, other than:….
“U.S. Reportable Account” means a Financial Account ….held by one or more Specified US Persons or by a Non-U.S. Entity with one or more Controlling Persons that is a Specified U.S. Person
Who gets reported?
The term “Controlling Persons” means the natural persons who exercise control over an Entity. In the case of a trust, such term means the settlor(s), the trustee(s), the protector(s) (if any), the beneficiary(ies) or class(es) of beneficiaries, and any other natural person(s) exercising ultimate effective control over the trust… The term “Controlling Persons” must be interpreted in a manner consistent with the Financial Action Task Force Recommendations. N.B. To identify the Controlling Persons of an entity FIs may generally rely on information collected and maintained pursuant to AML/KYC procedures.
89
Who gets reported?
§ In the case of a trust that is a FI, an “Equity Interest” is considered to be held by any person treated as a settlor or beneficiary of all or a portion of the trust, or any other natural person exercising ultimate effective control over the trust.
§ A Reportable Person will be treated as being a beneficiary if they have the right to receive, directly or indirectly, a mandatory distribution or may receive a discretionary distribution from the trust.
§ For these purposes, a beneficiary who may receive a discretionary distribution from the trust will only be treated as a beneficiary if they receive a distribution in the appropriate reporting period (i.e. either the distribution has been paid or made payable).
90
Charities & AEOI
91
Under FATCA:
§ UK registered charities that are FIs are ‘Deemed Compliant Financial Institutions” and do not need to register or report.
§ Charities that are not FIs are Active NFEs and their accounts are not reportable.
Under CRS:
§ UK registered charities that are FIs are not ‘Deemed Compliant’. However, there is no registration requirement (for anyone under CRS) and they are unlikely to have reportable accounts.
§ Charities that are not FIs are Active NFEs and their accounts are not reportable.
Deputies & AEOI
92
Under FATCA:
§ “An account is not a reportable account if ….. the account is held to comply with an order or judgement made or given in legal proceedings”.
Under CRS:
§ “Excluded account includes … an account established in connection with…a court order or judgement”.
Draft UK Guidance § “Excluded accounts include…an account held by a person
appointed by the Court of Protection…”.
Excluded accounts
Under both FATCA & CRS the following are excluded and are not reportable:
§ Most retirement & pension accounts (including immediate needs annuities).
§ Tax favoured products (ISAs, Nat Savings, Share incentive plans etc…).
§ Estate accounts (where institution has death certificate).
§ ‘Escrow accounts’ - i.e. accounts created as a result of court order – including COP deputyship accounts, etc...
93
What gets reported?
94
FATCA Reporting year 31/12/2014 “Each Specified US Person” CRS Reporting year 31/12/2016 “Each Reportable Person”
To be Reported:
§ Name
§ Address
§ TIN
§ DOB
§ Account number
§ GIIN of reporting FI
§ Account balance or value
§ Jurisdiction of residence
§ Place of birth (new
accounts)
What gets reported?
Account balance or value: § General principle is that value to be reported is the value the FI
calculates for reporting to the account holder.
§ For an equity interest in an investment entity (i.e. a trust which is an FI) the amount to be reported is the value calculated by the FI for the purpose that requires most frequent valuation.
§ Standard accounting principles should apply - no need to do special valuations of real property for AEOI.
§ Where there is more than one controlling person, report total value of trust for all controlling persons, same as for joint accounts.
95
What gets reported?
Mandatory beneficiaries: FATCA Guidance “The balance or value for a beneficiary that is entitled to a mandatory distribution…from the Trust will be the net present value of amounts payable in the future…measured on a recognised actuarial basis.” § Could use actuarial tables in Intestate Succession (Interest &
Capitalisation) (Amendment) Order 2008 or S7520 IRS Code.
Or § Use the “joint account” route and simply report total value of the
trust.
96
What gets reported?
Reportable Payments:
Total gross amounts paid or credited to any Beneficial Owner and beneficiaries who receive mandatory or discretionary distributions during the calendar year or appropriate reporting period, including aggregate payments in redemption (in whole or in part) of the account. Applies from: § Reporting year to 31/12/2015 for FATCA § Reporting Year to 31/12/2015 for CDOT § Reporting year to 31/12/2017 for CRS
97
AEOI – Key Reporting Dates
FATCA CDOT CRS Client identification + account balance
31/5/2015 n.a. 31/5/2017
Client identification + account balance + payments
31/5/2016 31/5/2016
(plus account balance for 2014)
31/5/2018
98
Information for preceding year to 31 December
Due Diligence – Account thresholds
Individual Accounts Entity Accounts Pre-Existing New Pre-Existing New
High Value Threshold High
Value Threshold High Value Threshold High
Value Threshold
FATCA US $1mn US $50,000 " " US $1mn
US $250,000 " "
CRS US $1mn " " " US $1mn
US $250,000 " "
99
§ Account aggregation rules apply.
§ Application of thresholds are generally optional.
§ High value limit for pre-existing entities under FACTA is level that triggers reporting for trusts that start off below $250,000.
AML - The old system does not work
100
“Thanks to the EU's new rules, European law enforcers should soon find it easier to track the money flows of
organised crime, bribe-takers and the like. That will help to push up detection rates for illicit funds, which are estimated
to be as low as 1% worldwide, with a seizure rate of just 0.2%, according to the United Nations Office on Drugs and Crime.”
The Economist 21/1/2015
AML - Financial Action Taskforce Recommendations 2012
101
Recommendation 24 - Legal persons (corporates & foundations) § Identify beneficial owners. § Ensure timely access. § Need not be a register or publicly available. Recommendation 25 – legal relationship (trusts) § Identify beneficial owners. § Ensure timely access. § Need not be a register or publicly available.
UK Response to FATF Recommendations
102
Corporates § Register of ‘persons with significant control’ (PSC). § Companies maintain register from 1st Jan 2016 – Companies
House filing from April 2016. § Public access to register. § Trusts that hold companies - trustee is PSC, beneficiaries are
generally not. Settlor? § ‘Request’ to CDs and OTs to follow suit.
Trusts § No changes planned.
EU 4th AML Directive
103
Key Principle: ‘Access to information without alerting parties involved’
Article 30 - Corporates & foundations § Register of beneficial owners. § Public access to register. § Trusts that hold companies? Article 31 - Trusts § Register “when the trust generates tax consequences”. § Access only to competent authorities. Other issues § EU to pressure others to follow (e.g. Switzerland). § Commission to publish black list of high risk countries.
Financial Institutions & AML
104
§ FIs coming under intense regulatory scrutiny of AML - e.g. US Treasury to require FIs to collect beneficial ownership information and make it available.
§ FIs face huge penalties for getting it wrong – e.g. Standard Chartered fined $300 million and barred from dealing for ‘high risks clients’ in HK and UAE.
§ FIs are now de-risking - growing aversion to jurisdictions/
business which might count as ‘high risk’.
Financial Institutions & RBA
Notable bank fines for AML & sanctions breaches:
105
Bank $bn Date Commerzbank 1.4 2015 BNP Paribas 8.9 2014 JP Morgan Chase 2.1 2014 Standard Chartered 0.3 2014 HSBC 1.9 2012 Standard Chartered 0.7 2012 ING 0.6 2012 ABN 0.5 2010
Issues for Practitioners
§ Are you ready for FATCA reporting by 31/5/2015?
§ Are you ready to respond to the extra CDD procedures your bank will apply?
§ Are your clients ready for:
§ CDOT reporting by 31/5/2016 § CRS reporting by 31/5/2017 § Do they need to consider disclosure options?
§ Are your CDD procedures ready for beneficial ownership reporting by 1/1/2016?
106
Questions
107
Risk & Reward Investment Proposi@ons & Concerns for Depu@es Mark Holt Execu(ve Manager David Mulholland DipPFS Investment Consultant
David Mulholland Frenkel Topping
Agenda • Introduc(on • Assessing Cost • Iden(fying Value • PorUolio Risk Management • PlaUorm Delivery
ü Mul( Provider Solu(ons ü Goals Based Investment ü Flexibility of advice
Client
IFA
Investment Provider
Deputy
Introduc@on
3 Professions 1 Client 1 Goal
CLIENT
FT IFA
DEPUTY
DIM
Client
IFA
Investment Provider
Deputy
Assessing Cost
Client
IFA
Investment Provider
Deputy
Iden@fying Value
Process Performance
People Cost
Value
Risk Rated – Safe??
Risk Targeted – Safer
REMAP 5 – Asset Alloca@on
Canaccord Genuity -‐ REMAP 5 Safe Hands
7IM Risk Rated – Moderately Cau@ous
SEI – Core Fund
FTL Enable
FUSION
• your Provider • Use a Consistent Approach to Analysis • Set Client Specific Benchmarks • Value is Cri(cal, not Cost • How can Frenkel Topping Help?
Summary
Laxmi Patel Boyes Turner Solicitors
Education, education, education…impact of ‘the
greatest reform to the SEN system in 30 years’
Laxmi Patel 7 May 2015
Do you need to know about the changes?
Yes if: • You work with children or young people
(CYP) • They have a disability or a learning
difficulty • They are 0-25 years
The new Law and Guidance • Children and Families Act 2014 (CFA) Part
3 – CYP with Special Educational Needs (SEN)
• Associated Regulations
• SEND Code of Practice 2015
The ‘old’ Law & Guidance
• The Education Act 1996 – Part lV • The Education Act 1996 – Schedule 27 • Education (SEN) (England) (Consolidation
Regulations) 2001 • SEN Code of Practice 2001
Definition of SEN (1)
S20 CFA 1) CYP has SEN if they have a learning
difficulty requiring special educational provision (SEP)
Definition of SEN (2) What is a learning difficulty or disability for CYP of school age? 1) Significantly greater difficulty in learning
than peers; or 2) Disability makes it difficult to use facilities
provided in mainstream schools/colleges
Definition of SEN (3) What is a learning difficulty or disability for CYP under school age? If likely to fall under (2) above when of school age of likely to be if no SEP made
Additional support
• 17.9% of children in schools have SEN • 2.8% have a Statement (DfE January
2014) • School based support – Additional SEN
Support • Statement or Education, Health and Care
Plan (EHCP)
Statements of SEN
• Statement of SEN Part 2 – child’s educational needs
• Part 3 – provision to meet those needs • Part 4 - school
Education, Health and Care Plans
• Replaces Statements and Learning Difficulty Assessments from 0-25 years
• Must specify educational needs and support required but also any health and social care reasonably required by the learning difficulties and disabilities (s37(2))
• Only education can be appealed to tribunal – but note the SEND (Pilot) Regulations 2015
How to get an EHCP
• Request can be made by parent, YP or school/college
• Statutory test 36(8) has or may have SEN or EHC provision needed
• EHC Assessment Reg.6(1) • Timescales
Benefit of having an EHCP
• Certainty of getting support • Support funded by LA • Health and social care support • Can go up to 25 years • Personal budget and direct payments
Review of the EHC Plan
• Under five years – review every 3-6 months • Over five years – review annually
• Review date on transfer remains 15 February
• Transition from Statement –1 April 2018
• Transition from LDA – 1 September 2016
Appealing to the Special Educational Needs and
Disability Tribunal • The different types of appeal
• Litigation and experts’ costs • Timescales – 12/20 weeks • The Hearing • The decision • Outcome
Post 16
• Duty on FE college to admit student if named in EHC plan and have regard to the new legislation
• FE college to use ‘best endeavours’ so young people with SEN have access to wide range of study programmes and support
• Apprenticeships
Personal budgets
• LA must prepare a personal budget if asked to do so by the parent or young person
• Direct payments
Ask yourself… • Is the CYP receiving adequate support at
school?
• Is the CYP at the right school/college?
• Does the Statement/EHCP need a Health check?
• Mental capacity – is the YP able to make decisions?
• Is there an imminent Annual Review or Transition?
Thank you – any questions?
Laxmi Patel @bt_sen1 0800 884 0723 / 0118 959 7711 [email protected] www.senexpertsolicitors.co.uk
Angela Johnson OPG
www.gov.uk/opg"
Changes within OPG
Freedom to choose: deputy day conference London 2015
Angela Johnson Head of Practice and Compliance, OPG 7 May 2015
www.gov.uk/opg"
Agenda • Performance
LPAs and deputyships
• Working in partnership Recent and planned activity
• Digital and IT LPA, Sirius and deputyship tool
• Supervision review Changes and works in progress
• Assurance visits Summary and professional deputy related
• Other developments Published standards and panel deputy campaign
www.gov.uk/opg"
Performance LPA and EPA applications
252,000
311,000
409,000
40,00090,000140,000190,000240,000290,000340,000390,000440,000490,000
2012/13 2013/14 2014/15
Financial year
App
licat
ions
rece
ived
www.gov.uk/opg"
44,593
49,006
53,100
40,000
45,000
50,000
55,000
60,000
2012/13 2013/14 2014/15
Financial year
Ord
ers
su
pe
rvis
ed
Performance Court appointed deputyship orders: supervised
www.gov.uk/opg"
Working in partnership Examples of OPG partner activity
www.gov.uk/opg"
Digital and IT LPA, Sirius and deputyship tool
• Online LPA service (live)
• Online deputyship tool (development)
• Sirius case management system
• Online register plans
LPA Service
www.gov.uk/opg"
Supervision review What we’ve doing already
Specialist teams Organised by deputy type
Types 1-3 Will disappear over coming year
Guidance Letters, leaflets and online all being improved
Early contact All lay/new professional deputies get a settling-in call
www.gov.uk/opg"
Supervision review Practice and Compliance: work in progress (1/2)
Standards • What good looks like Assurance visits • Standards will tie directly to Assurance Visits
undertaken Risk • Visitors’ professional opinion feeds into risk
assessment of the case. We’re exploring ways to manage risk better
Asset inventories • Deputies will be asked to submit one to us
Annual plans • Deputies will be asked to submit their plans to us
www.gov.uk/opg"
Supervision review Practice and Compliance: work in progress (2/2)
Charging estimates • Professional deputies (inc LAs) asked to include these in annual plans
Senior Court Costs Office • Seeing how cost estimates submitted to OPG can be shared with SCCO from outset
Reporting • All deputies to report “Type 3” conversion • Report requirement extended to all Supervision fees • Need to consult on new fee structure
Digi-deps • Introducing new digital channels for deputies
www.gov.uk/opg"
Supervision review New deputyship reporting (1/2) • Full report form OPG102 has under gone user testing
with provisional introduction date of mid-late June 2015
• Conversion of existing Type 3 cases to new reporting requirement from April 2015
• Requirement for 1st year deputies to fully report
• Standard ‘short’ report form to be produced to support conversion process
• Short’ form issued to new cases on anniversary of their order and once existing case converted, issued on anniversary of Court order
www.gov.uk/opg"
Supervision review New deputyship reporting (2/2) • New Health & Welfare report form currently being
tested
• Two further forms referred to as 'inserts‘ are currently being designed and these will be introduced at earliest opportunity later this year:
• 1st insert - asks detailed questions about a professionals fees
• 2nd insert - asks detailed questions about local authorities fees
• All forms developed with stakeholder input and user testing
www.gov.uk/opg"
• From April 2015 - new Type 3 cases ‘settling in call’ processes will introduce reporting requirement from the outset
• Standard (short) reports not received into Supervision until April 2016
• All local authorities (LA) sent letter explaining Standard (short) reporting requirement
Supervision review New deputyship reporting: Type 3 requirements
www.gov.uk/opg"
• Conversion process will be discussed when time to convert caseload • Conversion by phone call and discussion with the deputy • Conversion happens over three year period (LA and Professional teams
will convert cases in first two years) • Deputy not case specific approach will be taken to conversion
Approximate number of cases
Approximate number of deputies
Local authority 10,500 170
Lay 6,900 6,900
Professional 1,700 750
Health and Welfare 400 400
Total number of cases 19,500 8,220
Supervision review New deputyship reporting: Type 3 requirements
www.gov.uk/opg"
• Professional and local authority deputies
• Over 500 completed during 2014/15
• 850 planned for 2015/16
• Important part of our impact indicator to review 40% of professional and local authority deputies each year
• Supports our strategy of proportionate support and supervision
Assurance visits Summary
www.gov.uk/opg"
• Support and guidance to deputies where gaps in knowledge are identified
• Highlighted good and bad practice
• Issues may not have been identified without an Assurance Visit
Assurance visits Professional deputies
www.gov.uk/opg"
• Deputyship ‘Duty of Care’ paragraph 8.57:
‘If deputies are being paid for their services, they are expected to demonstrate a higher degree of care or skill when carrying out their duties.’
What does that look like?
Published standards Mental Capacity Act 2005 - Code of Practice
www.gov.uk/opg"
Published standards Best practice and levels of service expected • Local authority and professional deputy standards Split into five key areas: Standard 1: secure the client’s finances and assets Standard 2: gain insight of the client to make decisions in their best
interest Standard 3: maintain effective internal office processes and organisation Standard 4: have the skills and knowledge to carry out duties as deputy Standard 5: health and welfare standards
www.gov.uk/opg"
• Current panel of deputies comes to an end in May 2015
• Mostly solicitors, two legal trust corporations and one charity
• Appointment campaign for new panel currently under way
• Aim to broaden range of skills and experience of new panel while maintaining high standards
• Campaign response positive
• New panel due to commence on 1 June 2015
Panel deputies Appointment campaign update
www.gov.uk/opg"
Breakout Sessions
Conference Chair Roundup #FTDepu(es