Family analysis: The question for the Court of Appeal was whether it was wrong to refuse to direct a fact-finding hearing in relation to whether a mother was responsible for inflicting fatal injuries on an older child seven years earlier, in order to inform the risk assessment and overall welfare analysis in proceedings concerning her new baby. The majority decision that it was not, and that the risk assessment could contemplate a wide range of possible outcomes even without findings being made in relation to the circumstances of the older child’s death. However, the decision in this case was obviously highly fact-specific. It is unlikely to act as authority for any particular proposition, but serves as a stark demonstration of the difficulty that appellants face in overturning case management decisions. Chris Stevenson, barrister at 4PB, examines the issues.

Pensions analysis: The Pensions Ombudsman (TPO) upheld a complaint that trustees had wrongly treated section 25(b) of the European Metal Recycling scheme rules as an effective forfeiture provision. Although the statutory regime permitted forfeiture of pension and GMP arrears after six and eight years respectively, the rule merely authorised the trustees to apply unclaimed money for Scheme purposes and did not extinguish the beneficiary’s underlying entitlement. Applying Punter Southall and related authorities, the Ombudsman held that forfeiture requires clear operative wording depriving the member of the benefit. Practitioners should therefore scrutinise both the substance of scheme wording and the cause of any underpayment, particularly where payments ceased through unexplained administrative error rather than beneficiary inaction. Produced in partnership with Ben Fairhead of Arc Pensions Law LLP.

ARCHIVED: This Practice Note has been archived and is not maintained. Brexit 11 pm (GMT) on 31 December 2020 marked the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At this point in time (referred to in UK law as ‘IP completion day’), key transitional arrangements came to an end and significant changes began to take effect across the UK’s legal regime. The UK ceased participation in the EU Emissions Trading System (EU ETS) at the end of the implementation period. The UK has set up its own UK emissions trading scheme (UK ETS) and requirements on UK ETS participants took effect on 1 January 2021, the beginning of the UK ETS’s first trading period. Under the terms of the Withdrawal Agreement, the UK remained in the EU ETS during the transition period and operators therefore had to comply with obligations relating to the 2020 scheme year, which ended on 30 April 2021. For more information on obligations relating

Planning analysis: In London Borough of Brent v (1) Secretary of State for Levelling up, Housing and Communities, and (2) Yehuda Rothchild, Robert Palmer QC (sitting as a Deputy High Court Judge) refused to grant the London Borough of Brent’s (‘Brent’) appeal against the August 2021 decision of an inspector to quash an enforcement notice that had been issued by Brent. The enforcement notice alleged (among other things) the unlawful erection of a rear extension to a mid-terrace house in Brent’s area. The decision provides a clear confirmation that the test of whether a house is a ‘dwelling-house’ is that set out in Gravesham Borough Council v Secretary of State for the Environment (‘the Gravesham test’). Written by Christopher Moss, pupil barrister at 39 Essex Chambers, reviewed by Jake Thorold, barrister at 39 Essex Chambers.

Approved code of practice The HSE Approved Code of Practice (ACOP) ‘Managing and working with asbestos’ L143 (Second Edition) dated December 2013, has special legal status and provides practical guidance on how to comply with the Control of Asbestos Regulations 2012, SI 2012/632. There are three different categories of asbestos work: • licensable work • notifiable non-licensed work (NNLW) • non-licensed work Work with asbestos This means any work which removes, repairs or disturbs asbestos, including ancillary work and supervision. Licensable work with asbestos The ACOP provides details of when work with asbestos should be done by a licensed asbestos contractor: • where worker exposure is not ‘sporadic and of low intensity’—concentration of asbestos in the atmosphere does not exceed 0.6 fibres per cubic centimetre (f/cm3) over a ten-minute period • where the risk assessment cannot clearly demonstrate that the control limit will not be exceeded—0.1 f/cm3 airborne fibres over a four-hour period • on asbestos coating—surface coatings which contain asbestos for fire protection, heat

A copy of the notice of intention to appoint together with any document accompanying it must be filed at court, together with the written record of the directors' decision or a copy of the shareholders resolution (whichever is appropriate) as soon as reasonably practicable. A fee will be payable upon filing. See Practice Note: Court fees in insolvency proceedings. The Temporary Insolvency Practice Direction Supporting the Insolvency

Pensions analysis: In the case of Engineering Construction Industry Training Board v Swift, the High Court held that the Claimant’s occupational pension scheme, which had both defined benefit (DB) and defined contribution (DC) sections, was not a ‘segregated scheme’ for the purposes of Regulation 8 of the Occupational Pension Schemes (Employer Debt) Regulations 2005 and therefore that the termination of DB pension accrual would not trigger a debt under section 75 of the Pensions Act 1995. The Lexis®PSL Pensions team take a look at the decision, which provides some helpful guidance as to the meaning of 'segregated scheme' in the Employer Debt Regulations and the types of provisions in a scheme’s trust deed and rules that may lead to the definition not being satisfied.

To properly consider whether a person is connected with another person for the purposes of sections 1122 and 1123 of the Corporation Tax Act 2010 (CTA 2010), it is very important to carefully consider the detailed legislation in full. Relying on a summary of the legislation

This Practice Note considers when a person is ‘connected’ with a company under section 249 of the Insolvency Act 1986. The term ‘connected’ is particularly important to understand in relation to antecedent transaction claims that an office-holder may bring to recover any dispositions of property by a company prior to the advent of a formal insolvency procedure for the benefit of creditors. The intention is to prevent ‘connected’ persons from benefitting from any such dispositions of property. By way of clarification: • in transaction at an undervalue claims, while the burden is on the office-holder to prove that the company was unable to pay its debts at the time of, or in consequence of, the transaction if the transaction was entered into with a connected person then there is a rebuttable presumption that the company was unable to pay its debts at the time of the transaction, unless shown otherwise • where a company has given a preference to a person connected with it (otherwise

Local Government analysis: A healthcare provider which failed to properly authorise deprivation of liberty for a patient in its care was therefore not exercising a ‘special statutory power’ and so was not exercising a public function for the purposes of section 6 of the Human Rights Act 1998 (HRA 1998). This was so despite the fact that the provider ‘appeared to believe that it had’ special statutory powers’, and that ‘a knowledgeable observer would know that the only lawful way to do what was being done was through the exercise of such a power’. In cases which fall outside the carefully circumscribed scope of section 73 of the Care Act 2014 (CA 2014), the principle in YL v Birmingham City continues to represent the present state of the law. Written by Siân McGibbon, barrister at Landmark Chambers.

Prohibition of public offers by private company (Companies Act 2006, Part 20, Chapter 1) Under section 755(1) of the Companies Act 2006 (CA 2006) a private limited company must not: • offer to the public any securities (ie shares or debentures) of the company, or • allot or agree to allot any securities of the company with a view to their being offered to the public Further CA 2006, s 755(2) confirms that, unless proved otherwise, an allotment or agreement to allot securities will be presumed to be made with a view to their being offered to the public if an offer of the securities (or any of them) to the public is made: • within six months after the allotment or agreement to allot, or • before the receipt by the company of the whole of the consideration to be received by it in respect

Arbitration analysis: The applicant, Betta Oceanway Company (‘Betta’) applied for an order under section 68 of the Arbitration Act 1996 (AA 1996) setting aside a procedural order (PO6) issued by a tribunal in an LCIA arbitration. Mrs Justice Dias recognised that the question is one of substance, and not of form, Dias J dismissed the application on the basis that PO6 was not an award. Further, Dias J held that, even if PO6 had been an award, it would not be set aside under AA 1996, s 68 because no serious irregularity had occurred, nor had any substantial injustice been suffered. Written by Anna Gilbert, counsel at Hausfeld & Co LLP.