Care/Nursing Homes

We have a vast amount of experience dealing with the proprietors and managers of care, nursing and childrens homes. We are fully conversant with the role of the Commission for Social Care Inspection (CSCI), the Care Standards Act and the appropriate regulations. We are able to attend to advise individually in relation to any alleged breach of regulations, which may or may not be leading to an application by the CSCI for closure of the home or any amendment to the Certificate of Registration.

We can also attend at the Magistrates Court should matters proceed in that way. Not only do we offer the above service but we attempt to provide the same with a caring and understanding approach.

Most businesses have to make decisions on a day to day basis as to whether something is or is not waste. Some of these decisions are difficult to make and getting it wrong can result in onerous fines and in serious cases imprisonment.  Not only does a business have to determine whether an object or substance is or has become waste, but also and often this is more difficult to determine, when has waste ceased to be waste.  It is the responsibility of businesses to ensure than in implementing these decisions they are complying with regulation.  The difficulty in making decisions in some cases has been recognised to such an extent that guidance is to be published by Defra (The Department of Environment Food and Rural Affairs) on the legal definition of waste.  The aim is to help businesses by providing some guidelines and criteria to assist in the decision making process.

Regulation exists to prevent the harmful effects caused to the environment by the collection transport treatment storage and tipping of waste.  The composition of waste is often uncertain and there is the potential to pollute.  On the other thand, there is a move now more to encourage the use of waste as a resource rather than simply looking at waste in a completely negative light.

Waste is defined under Article 1 (1)(a) of the Waste Framework Directive and has been further interpreted by a substantial body of EU case law.  Any substance is capable of being waste.  A substance or object is waste if it is discarded within the particular meaning of the Waste Framework Directive but every case must be assessed on its merits.

If a substance or object is a product namely something manufactured or produced with the intention of using or marketing it then it would not be waste.  If the same substance or object is being used again for teh same purpose for which it was conceived then again it is not a waste.  For instance is the object being passed on as second hand goods for its original use without needing any treatment or processing then that would generally not be waste.

Difficulties arise where the substance or object is a by product of a production process.  Production residues are likely to be waste but if it is possible to classify these as a by product which can be used and certainly will be used without any special precautions to ensure the protection of the environment and human health then it is not waste. There are some substances that do need to be disposed of as required by legislation such as mercury or some animal by products.

If a substance or object has been transferred to a disposal or recovery operation then it has clearly been discarded and that will indicate that it is waste.  Again substances or objects of low economic value which can be a burden upon the holder or producer to dispose of on the face of it are waste.

The second and probably the most difficult area is where a substance or object has become waste but then can be seen as ceasing to be waste. If the object or substance has been discarded then something would need to be done to it for it to cease to be waste.  The process does not necessarily need to be extensive it can be minor.  Pre treating may not be enough as the object or substance would need to be fully recovered or recycled, all unwanted substances and any contamination needs to be removed.  Even so if there is no genuine market for the recovered or recycled material and its future use is uncertain then it is likely to remain waste.

Storage of a product therefore for an indefinite length of time to await possible use such as stock piling would render the substance or object likely to be classified as waste.

Whilst there is a substantial body of case law particularly EU case law regarding the definition of waste, there are two recent interesting national cases. In 2009 in the case of EA -v- Inglenorth Limited on appeal from the Magistrates Court, it was found that a company was not guilty of waste disposal offences under the Environmental Protection Act 1990 Section 75 as the material (excavation and demolition material) that it has moved from one site to another for a customer was ot controlled waste because at the time it was delivered the customer intended to use it immediately for another purpose.  In R v W and others in 2010, again going to appeal, waste arising from works of construction or demolition (soil) was found not to be waste. The recipient intended to reuse the waste material and whilst this did not alter its status as waste in itself as such actual reuse could.  The Court reiterated that waste would continue to be waste until accetable recovery or disposal had been achieved and all depends on the facts of an individual case.

It is clearly therefore important for those responsible within a business for the cotrol of waste to obtain and read a copy of the Defras Guidance and in a more complex case would be well advised to take legal advice.

Health Professions

We take instructions in relation to disciplinary proceedings brought by Health Professionals regulatory bodies e.g. the Health Professions Council, the General Chiropractic Council, the British Acupuncture Council, the British Osteopathic Council, the Society of Homeopaths etc.

We prepare letters of representation in relation to the allegations of professional misconduct and/or fitness to practice. We take full instructions in relation to the documentation provided by the appropriate prosecuting or regulatory authority and attend at the hearings before the Professional Conduct Committee of various Health Professions regulators. We advance arguments on behalf of individuals to the effect that they are fit to practice and/or that they have not brought their profession into disrepute and/or that they are still competent to continue their practices.

The Food Standards Agency carries out a range of work to make sure food is safe to eat, including funding research on chemical, microbiological and radiological safety, as well as food hygiene and allergy.

The details of their day-to-day work on safety and hygiene, including policy, business and research programmes are set out on their website. A guide to the main general food law requirements, including the provisions of food safety is in the food industries section of the website.

For consumer advice on food allergy, hygiene tips on storing and preparing food at home, plus information about food poisoning, visit NHS Choices.

If you find yourself in need of legal advice for Policies and Procedures or after the event complaints contact HCC Solicitors

Inquests

We take instructions from individuals and groups of people eg: Security Groups as regards death in custody, death in suspicious circumstances etc. We attend the inquest and advise on the process as well as instructing counsel where necessary

Licensing

Our licensing department is dedicated to providing practical commercial advice. We endeavour to be flexible and ensure that each client's requirements are met within the required timescale, no matter what the size of the client.We are aware of the local political climate and policy considerations and our experts cover all types of licensed applications and court representation, including the buying and selling of licensed premises of different descriptions.

We believe it is important to work closely with the clients from the outset to significantly increase the chances of success of licensing applications.

Other Professions

Estate Agents

We take instructions in relation to any such appeal by individuals and/or companies, liaise with the Solicitors for the respondent authorities and attend at the appeals tribunal to advance the appeals using our vast advocacy experience in such matters.

These tribunals hear e.g. appeals by estate agents and other professionals against decisions of the Department of Trade and Industry where an individual has been accused of committing wrongful acts in the course of their profession.

Police Officers

We act for Police Officers and associated personnel e.g. Police accountants etc. and all aspects of discipline and/or criminal proceedings brought against them. The same can be said in relation to the Fire & Rescue Service, Accountants, Solicitors etc.

Taxi Cabs

We deal with licensing reviews at the local authority, licensing committees amongst other things. You may also be interest to look at our link to "Road Traffic offences" as clearly taxi drivers are as likely, if not more, to be involved in road traffic accidents through the nature of their business and therefore be subject to prosecutions in relation to the Road Traffic Act and otherwise

For more information regarding licensing go to the section under the "Regulatory" heading.

The prevention of the sale of potentially harmful consumer products to children has resulted in criminal liability for traders and a host of individual pieces of legislation with different elements, whether it be the offences, defences, enforcement and penalties. Age restricted sales of tobacco, fireworks, intoxicating substances, knives, tattoos, animals, videos, lottery, sun beds and the list goes on, are all dealt with under different pieces of legislation and regulation and the individual parts of that legislation need to be carefully considered in respect of each offence.  It is an offence to sell aerosol spray paint to a person under 16 and this carries a Level 2 fine on the standard scale.  The sale of cigarette lighter refills is an offence if the person is under the age of 18 and this carries a Level 5 scale. Indoor fireworks such as Christmas Crackers and party poppers must not be sold to a person under 16 whilst garden fireworks are completed banned from sale to the public.  It is an offence to tattoo a person under the age of 18 and an offence to sell a lottery ticket to a person who has not attained the age of 16.  It is no surprise that there have been calls for some time to simplify and consolidate age restricted sales into a single piece of legislation and to provide businesses and employees with a simple due diligence defence across product categories.  Where a genuine and reasonable mistake has been made in judging the age of an individual the business owner should have a defence to a criminal action.

The criminality of regulatory business matters is an area being considered by the Government with the aim of reducing regulation and ensuring that formal enforcement is seen as a last resort.  De-regulation and less heavy handed enforcement appears to be part of the government economic growth strategy.  Existing regulation needs to become more risk based and where possible, decriminalised.

We have seen the "red tape challenge", a website where the public can have its say on matters relating to regulation and enforcement.

In April of this year the government published a policy statement entitled "One In, One Out, Statement of New Regulation". namely every time a department wants to introduce a regulatory measure it has to work out the cost on business and if it can lose a regulatory measure of the same cost.  The government has published the document "Transforming Regulatory Enforcement: freeing up business growth", a consultation document, consultation to close on the 15th September 2011. Its purpose is stated as being to reform the way in which regulation is enforced on the front line. The theme is one of ratcheting down enforcement to allow businesses to spend less time and money on dealing with enforcement issues.  There is also a proposal to put in place mechanisms giving businesses the opportunity to challenge Regulators and Enforcement Officers as a routine part of the system.  How frustrating is it for business owners to have to deal with criminal proceedings which are disproportionate to the offence that has occurred. How often is it that an underage test purchaser arrives at a bar when it is 3 deep with the manager collecting glasses and an inexperienced person behind the bar, under pressure, and forgetting simple rules in respect of which they have been trained.  This may be the first offence of that business but nonetheless the business owner finds himself in court and a black mark against his licence and always the threat of a licence review in a business which has become ever more difficult to police.  This can be even though the written policies of the particular authority promote court action as a last resort.

Whatever the outcome, it is clear that regulation and enforcement is not working effectively and that reform is required.

LEGLISLATION APPLICABLE IN ENGLAND AND WALES

VOSA

We also attend at public inquiries where an individual or company have been summoned before the Traffic Commissioner. We take instructions in relation to the advance information provided by the Traffic Commissioner's office, write letters of representation in relation to the allegations against individuals and/or companies, attend at the public inquiries to advocate on behalf of the individual or company and/or put forward mitigation where guilt is admitted in full or in part.

For more information regarding prosecutions brought by VOSA go to sub heading Road Traffic Offences.