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In a situation where a building has a B1 EWS1 rating but the insurance companies are either refusing to quote or saying the cladding is a fire risk (due to the result of the intrusive survey for the EWS1 rating) and quadrupling insurance premium, is there anything that will help with this situation in the Building Safety Act or the secondary regulations when they come in or do you think it is something case law will have to address?

The amount an insurer charges for providing cover is a critical aspect of the underwriting process. The premium must be sufficient to cover expected claims but must also take into account the possibility that the insurer will have to access its capital reserve –it is risk assessment based and the greater the risk, the higher the premium. Historically, insurers of high-rise buildings would have only had to prepare for a loss caused by damage to just a few flats within a building. That is because the design and construction of that building, with the right materials and fire safety provisions in place, should have limited the spread of fire and allowed the damage to be contained –or at least make this an extremely low risk. Now we know that many buildings have been designed, built and signed off in a regulatory system that an independent Government review has found was not fit for purpose. Premiums will reduce overtime but will be dependent upon the perceived level of risk reducing as the regulatory regime, BSA and BSR become more established.

Related FAQs

What is the Clinical Negligence Scheme for Coronavirus?

The Government has recently passed the Coronavirus Act 2020 in a response to the challenges posed by the pandemic, especially in relation to those facing the NHS during this time of crisis.  NHS Resolution worked closely with the Department for Health and Social Care to draft a clause within the Coronavirus Act providing indemnity for clinical negligence for any coronavirus related activity not currently covered by an existing arrangement.  In order to implement this clause, NHS Resolution has launched the Clinical Negligence Scheme for Coronavirus (“CNSC”).

It is intended that the CNSC will cover new contracts put in place for healthcare arrangements to respond to coronavirus, such as organisations supporting testing arrangements or Independent Contractors making agreements with NHS England and NHS Improvement to release capacity to the NHS.  Membership is not required for this scheme and the contracts entered into will automatically provide indemnity under the scheme.

The CNSC will not replace existing indemnity provisions made under the Clinical Negligence Scheme for Trusts (“CNST”) and it has been confirmed that the new Nightingale Hospitals will be covered by CNST rather than CNSC.  Similarly, NHS Resolution have confirmed that those doctors and nurses returning to practice from retirement, or those joining as students will be covered by the CNST or, where applicable the Clinical Negligence Scheme for General Practice (“CNSGP”).  The CNSC will not cover returning midwives to the profession, but the Royal College of Midwives have confirmed that they will extend all of the benefits of membership including Medical Malpractice Insurance to returning retired midwives.

For more information regarding this please click here.

What are the minimum consultation time limits?

Where an employer is proposing to dismiss:

  • 100 or more employees at one establishment within a 90-day period, consultation must begin at least 45 days before the first dismissal takes effect
  • Between 20 and 99 employees within a 90-day period, consultation must begin at least 30 days before the first dismissal takes effect
  • If you are proposing to dismiss less than 20 employees then there are no minimum time limits but you must adhere to a fair process which will involve individual consultation and providing the employee with a right of an appeal
I am dealing with an estate where the bank has sent me an indemnity to obtain the funds. Will the bank accept my signature without it being witnessed by my solicitor?

If you have obtained a Grant of Probate or Grant of Letters of Administration there should be no need to complete an indemnity, merely an account closure form. If however you have not yet obtained a Grant but the bank is willing to release funds then they will generally require an indemnity to be executed. Several banks and building societies including Barclays, Lloyds, HSBC and Santander have signed up to the British Banking Association’s voluntary Bereavement Principles, one of which is to support the bereaved according to their personal needs and work with you to resolve everything as quickly as possible.

If the indemnity requires a solicitor to act as a witness, you should contact the bank to see what they are willing to do to get around the problem, given the current situation.

Employer furlough schemes

Furlough means temporary leave of absence. There is nothing to stop an employer seeking to agree a temporary leave of absence – with or without pay – with its workforce.

This could not be forced on an employee without significant risk. Without agreement, this would need fair selection and consultation – more on that later.

What is IR35?

IR35 is an anti-tax avoidance regime which is intended to tackle (in HMRC’s view) the long standing issue of individual contractors providing their services or labour via an intermediary – which is usually a personal service company (referred to as a PSC). We’ll talk about PSCs here, but there are other types of intermediaries that are caught.

HMRC’s view is that this arrangement is often considered to be disguised employment and therefore a tax-avoidance arrangement.

So IR35 is essentially a test of employment status – and if, once you apply the test, the contractor should be an employee, they should then be taxed as an employee.