Essential: All Party Group recommends extending Health & Safety Fees for Intervention

I recently blogged about protection against payment of Health & Safety Executive (HSE) Fees for Intervention (FFI) for businesses regulated by HSE available under our Commercial suite of products. (“Covered: health & Safety Executive Fees for Intervention”, posted 8 October). It seems that the Government has realised that local authorities might also benefit, if their health & Safety enforcement teams were able to claw back administrative costs. 

The All-Party Parliamentary Group on Occupational Safety and Health (APPGOSH) has published a report, "Local Authorities and Health and Safety"  which challenges the assumption that workplaces which are regulated by local authorities (as opposed to the HSE), such as offices, shops, warehouses, and pubs and clubs, necessarily carry a lower health and safety risk. The report points to the high rates of injury and illness in warehouses, and of occupational disease in offices (stress), supermarkets (musculoskeletal disorders), and pubs (violence). 

Report recommendations include:

• placing more emphasis during inspections on health, rather than just safety;
• re-introducing compulsory pro-active inspection for all new premises or businesses regulated by the local authorities
• extending fees for intervention (FFI) to local authority-regulated activities.

FFI was introduced in October 2012, allowing the Health & Safety Executive to charge businesses in the sectors that it regulates for the costs of regulation at a rate of £129 per hour. Further information about FFI can be found in my earlier blog. 

Faster and free - Your clients’ right to medical records under GDPR?

The introduction of the General Data Protection Regulation (GDPR) back in May generated a lot of uncertainty and work for businesses but created clear benefits for us all as individual “data subjects”. One up-side that went largely unnoticed is the right for clinical negligence claimants to have free access to their medical records.

Before this summer, even just the mention of GDPR might be met with groans from colleagues tired of hearing about this important but inevitably complex piece of legislation that all of us in any sort of business had to get our heads around, to some extent.

However, one specific aspect that has been of particular interest to all of us who work on behalf of people who have been harmed by medical malpractice, is the impact that the Regulation has had on accessing a client’s medical records.

The right to see the information that medical professionals have recorded about us isn’t new, of course. Such rights were certainly codified under GDPR’s predecessor the Data Protection Act in 1998 and, to a limited extent, the Access to Medical Reports Act back in 1988.

Two key aspects of GDPR have already had a significant impact on how such matters are progressed. First, the regulation has reduced the amount of time that an organisation has to respond to a subject access request (SAR) from 40 to 30 calendar days, speeding up the process of assessing a claim which should be ultimately beneficial for all parties.

Second, and perhaps more important, has been GDPRs provision that organisations are no longer permitted to charge an administration fee for responding to a SAR, in most instances. As well as making it easier for prospective clinical negligence clients to get hold of their medical records before a specialist solicitor assesses the merits of their case, this also has the effect of speeding up the claims process. 

These implications of GDPR are not entirely uncontentious and there has been some resistance, particularly for some smaller medical organisations such as GP surgeries, claiming to be overwhelmed by the demand to review large, historic medical files in order to redact data about any third parties who may not have consented to the release of any information about them.

There remains some uncertainty around precisely where such responsibilities fall but, on the whole, GDPR appears to have supplied a rare improvement for claimants trying to assert their legal rights in what are often the most difficult of circumstances.

While surveying its members on the impact of such requests, the BMA has produced some useful guidance for the medical profession about GDPR, particularly its FAQs related to SARs.

Like all legislation, there are clearly some wrinkles that still need to be ironed out. Nonetheless, anything that speeds up the lengthy process of seeking redress for injury caused by clinical negligence can only be a good thing, for all parties involved.

Covered: Health & Safety Executive Fees for Intervention

The inclusion of cover that pays Health & Safety Executive Fees for Intervention (FFI) has attracted positive feedback following the relaunch of our commercial products in the Spring. Here’s some further information about FFI that’s aimed at helping agents explain what the new cover is and how enhances the value of the products. 

Background

• Fee for Intervention (FFI) is a “cost recovery scheme” operated by the Health & Safety Executive (HSE). Under the Health and Safety (Fees) Regulations 2012.    
• Under the Health and Safety (Fees) Regulations 2012, workplaces in ‘material breach’ of health and safety laws are liable for recovery of the HSE’s costs for any inspection, investigation and enforcement action that is undertaken. A ‘material breach’ occurs when the HSE issues a notification of contravention, an improvement or prohibition notice, or a prosecution.
• When criminal proceedings are started, FFI cease and criminal prosecution costs apply. (Note - prosecution costs are not covered by LEI, but the cost of legal representation is).
• From October 1, 2012, the HSE have been able to recover the costs of its interventions from businesses found to be in material breach of the law, even in the absence of a prosecution.
• If the HSE intervenes they are under a legal duty to recover costs in all cases where there is (i) a material breach of health and safety law and (ii) a requirement to rectify the breach is made in writing.
• There does not have to be an incident or prosecution to trigger such HSE involvement

Scope of FFI 

Sectors regulated by the HSE include: factories, mines, schools, fairgrounds, nursing homes, government premises, dentists and doctors’ surgeries. (Other occupations are regulated by  local authorities which do not operate a fee regime).

FFI applies to public and limited companies, partnerships, the Crown and public bodies, and to self-employed people.

It does not apply to:

• Self-employed people who only put themselves at risk
• Employees (Partners are not employees) 
• Work where another HSE fee is already payable (for some or all of that work), e.g. under the Control of Major Accident Hazards Regulations 1999

Other organisations that enforce health and safety law, such as the police or local authorities, will not be able to recover their costs under FFI.

FFI Charges 

Inspection with no action taken: No costs will be recovered
Inspection resulting in an email or letter: £750
Inspection resulting in a notice being issued: £1500

Full investigation: Ranges from approximately £750 through to several thousands of pounds.

HSE will invoice the business and expect payment within 30 days. A complaints process is available allowing businesses to bring a complaint about an invoice and HSE will explain the process when a charge is levied.

ARAG’s position

In our view, FFI are not fines and they have not been introduced as a civil penalty - but solely to support Government policy which requires that service users should pay for the costs of the services they use. HSE policy guidance makes it clear that the purpose of FFI is to recoup costs, and of course exposure to FFI may encourage good H & S practice. The law does not prohibit the use of insurance as a funding mechanism.

FFI could be considered similar to an order for opponents’ costs in a civil case, but the charges relate to internal admin, rather than legal costs incurred. Including indemnity for FFI for commercial policyholders completes a ring of protection by extending indemnity that has always been available for legal costs to appeal H & S enforcements notices, and to defend prosecutions.   

Since data has become available that allowed us to calculate the risk, we were pleased to add FFI cover as part of the May 2018 relaunch of commercial products. 

Notifying claims

We cannot settle FFI invoices until they have been raised, but policyholders should tell us about H & S activity as soon as they are aware that the H & S Exec has identified non-compliance that will incur FFI charges. We may also be dealing with a claim to appeal against an improvement or prohibition notice that relates to the intervention that has resulted in liability for FFI. If that is the case, customers should quote the reference of any claim that relates to the same event. FFI invoices should be sent to us promptly for payment.  

Supporting Our Superhero Brokers

For a lot of us, learning is something we associate with our younger years and school, college, sixth form or university. Our later years are traditionally just for work.

Recently though this has been changing. More and more people are seeking out new skills and information, both to stay ahead in their careers and exercise their minds. The NHS advises adults continue to learn for their entire lives to keep up their mental wellbeing.

Continued professional learning and mental wellbeing  are a huge focus for us as a business. This year we've been working on something to mirror what we are doing internally and offer our business partners the same opportunity to learn.



To do this we're launching a completely free online training platform. This platform is designed to be a simple, easy to use way to get you intimately familiar with our products and services. It's available on your desktop just through your web browser, or on any iPhone, iPad or Android device using the EduMe app. You can see a sample of what the platform looks like on the right.

Our first module is an introduction to legal expenses insurance, then there is a specific module to help you get to grips with our recently relaunched Essential Business Legal.

The training platform has been tested and trialled both internally at ARAG and externally with some of our business partners to very positive feedback. It could even qualify towards the continual professional development (CPD) hours you need for this year, to find out if it does speak to your supervisor or compliance team.

To get started with the ARAG training platform all you need to do is click here. You'll need to sign up with your email and a password, and don't worry we won't be using your data for any marketing.

It's completely free and we'll be adding new modules on other products and services in the future so you might want to bookmark the site so you can check back.

What Every Innovator Needs To Know About R&D Tax Credits

From time to time we receive queries about particular HMRC regulations and whether we cover claims that arise from them under Essential Business Legal and our other commercial products. 

The topic of self-employed contractors, who provide their services through a service company and are subject to “IR35” comes up from time to time. (The answer is “yes”, we will deal with HMRC enquiries and disputes for self- employed contractors provided that the conditions of the policy have been met). Last week, we had a query that hasn’t come up before - about Research & Development (R&D) tax credits. 

If you have clients that engage in innovative projects in science and technology, you may be interested in this. 

About R&D Tax Credits

R&D tax credits can be claimed by companies which have incurred expenditure on innovative projects in science and technology. They can be claimed by a range of companies that seek to research or develop an advance in their field. HMRC define the types of project that qualify for R&D credits. E.G:

• The work must be part of a specific project to make an advance in science or technology.
• It can't be an advance within a social science like economics or a theoretical field like pure mathematics.
• The project must relate to the company's trade - either and existing one, or one that they intend to start up based on the results of the R&D.
• To get R&D relief the business must explain how a project:
• looked for an advance in science and technology
• had to overcome uncertainty
• tried to overcome this uncertainty
• couldn't be easily worked out by a professional in the field

SME R&D relief allows companies with up to 500 employees to:

• deduct an extra 130% of their qualifying costs from their yearly profit, as well as the normal 100% deduction, to make a total 230% deduction
• claim a tax credit if the company is loss making, worth up to 145% of the surrenderable loss

A different significantly less generous scheme applies for larger firms and I‘ve included a link below for more information:

https://www.gov.uk/guidance/corporation-tax-research-and-development-tax-relief-for-small-and-medium-sized-enterprises#how-to-claim-rd-relief

According to a post by one lawyer firm, the HMRC’s large business directorate is challenging more tax relief claims and the sum being disputed in relation to R&D tax credit claims nearly quadrupled in 2017, up from £90m to £425m for large businesses.

Claiming R&D Tax Credits 

Businesses can make a claim for R&D Tax credits when they fill in their Corporation Tax self- assessment return by calculating their expenditure on R&D and supporting their claim with suitable information.

Does Cover Apply If HMRC Challenge R&D Tax Credits Claimed? 

Good news! Essential Business legal will come to the rescue if HMRC investigate the insured’s Corporation Tax self-assessment return and raise a challenge about a tax credit claim provided that fraud has not been alleged of course, and that the return has been submitted to HMRC on time. 

One innovation deserves another. We hope that your innovative clients enjoy the peace of mind provided by our innovative (relaunched) Essential Business Legal and other Commercial legal expenses insurance products!

Volunteering for FOCUS!

Last Friday, 27th July, Fran, Hannah, Ollie & Jake caught the train to Cheltenham to volunteer for FOCUS at the Cheltenham Cricket Festival T20 game. 

FOCUS is our charity of the year and is the charitable fund for the Gloucestershire Oncology Centre, which raises funds to provide extra care, specialist equipment and improvements to facilities for local cancer patients.

Our volunteers collected raffle tickets in the hospitality tent which took over £1,600, and £394.10 from a bucket collection at the end of the day, raising nearly £2,000 in total!

In between the raffle and bucket collection, our volunteers took a tour of the oncology centre at Cheltenham hospital to see just how valuable our fundraising efforts are. 

The FOCUS support centre is situated in the heart of the Oncology Centre in the outpatient waiting area of the Hospital. The centre is fully funded by donations and is an invaluable source of information for patients, their carers and families. The team are there to support patients at every step; from a diagnosis of cancer to advice during and beyond their treatment.

The Focus Support Centre also offers: general information, support and advice on many types of cancer, talking with children, financial and estate planning, travel insurance, fatigue, support for carers etc. The centre is able to signpost people to benefits support, health and wellbeing events, counselling and psychological services. The support team also recruit a team of volunteer qualified therapists who offer complimentary therapies for patients. 

Every donation makes a real impact by funding extra care and equipment over and above that provided by the NHS. Recent donations have provided:
- a weekly wig clinic with a professional wig consultant, free of charge
- special reclining chairs which give comfort to patients receiving chemotherapy treatment
- sky ceilings which transform the environment in radiotherapy treatment rooms
- staff to expand the Focus Research Centre and trials to local people fighting cancer.

We are currently at 45% of our 2018 fundraising target for FOCUS, you can track our efforts here: https://uk.virginmoneygiving.com/ARAGLEI

P.s for the cricket fans out there, Gloucestershire beat Glamorgan by 30 runs.

D-ARAG-ON RACERS!

On Sunday the 10th of June our team of Viking warriors, the D-ARAG-ON RACERS, took part in the Bristol Dragon Boat Festival. This festival is an annual event organised by the Rotary Club of Bristol in order to raise money for Caring in Bristol, a charity to benefit the homeless.

After weeks of training an elite team of 20 D-ARAG-ONS took to the high seas (well, the Bristol harbour) and raced against 29 other teams to see who could cover 200m in as short a time as possible. We had three attempts at this and got better with every run. Our final round we were over 5 seconds faster than the first!

Whilst we came 27^th out of 30 we still had a great time on the day, raising money for Caring in Bristol and our charity of the year Focus. We managed to raise £1,182.50 (including Gift Aid) in advance and even more on the day in cash donations from fans and supporters.

We also had an ARAG yellow gazebo set up by the water all day with our Head of Sales, Andy Talbot, flipping burgers for hours on end to keep the hungry D-ARAG-ONS and their friends and family fuelled up for the races.

It was a really great day, with fantastic weather and a lot of fun had by all. And we were watching the techniques of the best teams, so we’ll do much better next time!

If you'd like to donate towards this great cause you can do so by clicking here to go to our Virgin Money Giving page.

Click here to watch the team warming up!

What has legal protection got to offer the insurtechs?

ARAG has done a succession of deals with new partners in the insurtech sector, but what does the legal expenses provider have to offer these innovative start-ups that is so attractive?

It’s hard to open a magazine (well… email) these days, without seeing the word ‘insurtech’. 

There’s certainly a buzz around the term. Even just the names of some of the businesses have the air of innovation about them: Neos, Homelyfe, Cuvva, Dinghy et al.

But, as is so often the case, the term 'insurtech' covers a multitude of innovations. Some are more concerned with how insurance is bought and sold. For others, technology offers a key to managing risk or reducing the impact of claims.

So, how does ARAG fit into all of this, and why are we doing so many deals with insurtech businesses.

First and foremost, ARAG offers flexibility. The legal expenses sector never used to be known for it’s innovation, with providers competing largely on price to deliver a one-size-fits-all, take-it-or-leave-it solution.

The stack-it-high-sell-it-cheap proposition still dominates the market, but it simply doesn’t work for most insurtech businesses, that need legal expenses and assistance solutions that fit perfectly with their products, policyholders and business models.

For Neos, the insurer that uses “smart home” technology to help either prevent claims or reduce their impact, the flexibility needed was all around the claims process and how ARAG’s home assistance service could integrate seamlessly into their operations to help lessen the cost of claims by minimising the damage that incidents might cause.

Another quality that insurtech business often look far is agility. It’s one thing to be able to tailor our products to the needs of our clients but, if it took us 12 months to get our operational or IT ducks in a row, then most start-ups will have long since walked away.

Our products have their own technological innovations too. Many brokers and their clients have been surprised by the sophistication of our ARAG Legal Services website with its digital legal document building tools for personal policyholders and businesses.

But ARAG’s recent successes in the insurtech sector are actually the product of something we’ve been doing since day one, which is building products that work for our partners and their clients and not trying to sell them a product that just works for us.

LEI : Are you making the most of this opportunity to differentiate yourself?

Whether it is serving the needs of commercial, motor or household customers, legal expenses
insurance (LEI) is now a key part of the business proposition for many insurance brokers.
The cover can be sold on a stand-alone basis, but in most cases is offered alongside household,
motor, commercial and landlords’ policies and is an affordable extension that typically includes
indemnity against the cost of common legal disputes as well as advice helplines and access to
online legal documents.

A legal matter can surface unexpectedly and there can be enormous reassurance in having
taken out LEI, often on the advice of a broker. But, given that legal risks change, are there
sufficient levels of understanding among brokers? To gain greater understanding of the sector,
Insurance Post and specialist LEI provider ARAG have recently conducted a major research
project with brokers to find out more about this market.

Certainly, without cover, many clients could find it more difficult to meet potentially high legal
costs, and indeed, even know where to find a solicitor with relevant experience. However, LEI
takes pressures away and is typically available at affordable prices, and can be tailored to meet
individual needs.

ARAG Legal Services website - Free Business Bulletins

If your clients/policyholders have an ARAG policy and have not yet registered to use > araglegal.co.uk , they could be missing out on lots of useful information.
In addition to maintaining the law guide and creating online legal documents for clients to customise to their own circumstances, the team behind our Legal Services website also publish topical Business Bulletins. Once registered with the site, customers can opt- in to receive these.

General Data Protection Regulations

For this first blog I’ve extracted some content about the General Data Protection Regulations from a recent business bulletin. Why not send this to clients with a reminder of their voucher code and encourage them to register on the Business Legal Services website to receive information like this in the future.

Introduction

The Data Protection Act 2018 will implement provisions of the General Data Protection Regulations (GDPR) into domestic law in the UK. The Bill is currently bobbing along through Parliament and will be passed into law to take effect from 25 May 2018. 

GDPR: how to demonstrate accountability

GDPR imposes an obligation on those who control other people's personal data. Data controllers must be able to demonstrate compliance with 6 essential principles.

In summary, these principles are that personal data must be:

1. processed lawfully, fairly and transparently;

2. collected only for specified legitimate purposes;

3. adequate and relevant, but limited to what's necessary for your stated purpose for processing it;

4. accurate and kept up to date;

5. kept for no longer than necessary for the stated purpose;

6. processed in a way that is secure.

What does it mean, in practice, to be able to demonstrate compliance with these principles?

Most importantly, you must have appropriate data protection policies and procedures. You may be a

very fair person and only ever process data lawfully, fairly and transparently (as required by the

GDPR). But if you don't have policies and procedures, you won't be able to demonstrate that.

You'll also have to be able to demonstrate that you correctly implement your policies and procedures and that you have effective compliance measures endorsed by the highest level of management in your business. You'll also have to provide training so that all staff understand what it means to be compliant with data protection principles, and you'll need policies for dealing with poor compliance and data breaches.

The Information Commissioner's Office says that, where appropriate, appointing a data protection officer (DPO) is necessary for demonstrating accountability. Businesses must appoint a DPO if their core activities include: regular and systematic monitoring of individuals on a large scale; or large-scale processing of information relating to criminal offences or 'special categories' – i.e. sensitive information on 8 specific topics, such as racial origin or political beliefs.

We expect most SMEs will not have to appoint a DPO. However, we'd suggest you choose someone to oversee data protection anyway, to help you demonstrate accountability.

Article 30 of the GDPR describes the records of data processing activities that you must keep. For

example, the record must include your name and contact details, the purposes of the processing and

any recipients of the processing. In effect, this amounts to a data protection audit.

If you employ fewer than 250 employees, you might not have to comply with Article 30. However,

the duty to be able to demonstrate compliance applies to all businesses that control data, so if your

business does then we'd suggest you conduct a data protection audit.

What this means for you

If your business controls personal information you must act fairly and in line with the principles of the GDPR. You must also be able to demonstrate this. How you do that will depend on your business and the personal information you control. At the very least, appropriate data protection policies and procedures will help. You should, however, also conduct an audit of the personal information that your business receives and processes.

How we can help

Our Privacy and cookie policy for a website will help if you have a website through which you

capture customer information. We also have an Employee handbook that instructs staff about the

data protection principles and their obligations. Both documents are compliant with the current Data Protection Act, but we're currently working to update them for the GDPR.

This Blog features legal content from Epoq Legal services, creators of ARAG Business Legal Services. 

Watch out for my second blog with some more extracts for you/your clients on employment law updates.

Video guide to ARAG Legal Services website

We’ve created a new video to provide a short overview of our commercial section of the ARAG Legal Services website, to help business customers understand the ease and benefits of this valuable addition to the commercial LEI policy.



Our short,animated video provides a step-by-step guide to the website showing the simplicity and use of the website.

Our comprehensive, jargon free law guide, will help policyholders get to grips with business laws and regulations. Our extensive range of easy to customise documents will help them comply with the law and protect their business.

The top services include:

-employment agreements

-employee handbook

-debt collection letters

- Health & Safety compliance review

-job offer letter

-and more…

With ARAG Legal Services;your customers;will have access to a host of useful and legally binding documents at their fingertips and provide value to the policy... even if your customers never make a claim.