Author: Woods Whur

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Magpies fined for Gambling Advertising on Kit: Woods Whur and Walker Morris issue Advice to Football League Clubs

Anna Mathias has been working with Walker Morris to advise Football League clubs on gambling advertising on their kit, after the Magpies were fined by the FA for displaying an advertisement for a betting company on its youth team shirts

Anna Mathias has collaborated with Walker Morris LLP in issuing urgent advice to Clubs in the Football League regarding the display of gambling advertisements on kit. This is in the wake of Newcastle United receiving a £7,500 fine from the Football Association after admitting a breach of its Rules by allowing the logo for its main sponsor, China-based betting firm Fun88, to appear on its youth team shirts. The advice is attached.

https://www.walkermorris.co.uk/app/uploads/2018/05/Gambling-Advertising-under-18s-players-and-under-18s-coaches-May-2018.pdf

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The Top Ten Regulatory Issues You Need to Think About

The wealth of legislation, guidance, codes of practice and other red tape can seem insurmountable at times.

The significant increase in financial penalties for health & safety, food safety and other regulatory matters only adds to the worry of a failure in any of these areas.

Our long standing experience of representing clients through regulatory problems has allowed us to identify the reoccurring issues where our clients fall foul of the regulatory authorities or in civil claims.

No matter what the size or breadth of your operations, the standards are the same and the need to comply does not vary due to size, location, profitability or any other factor.

James Thompson, our Head of Regulatory, has through many years of experience, seen a wealth of issues facing clients, but there are some which constantly recur time and time again.  Clients are well advised to think about them when conducting their day to day business.

James’ top 10 problems for businesses are

1. Asbestos management.

The obligations on you if owning or controlling premises are stringent in terms of managing asbestos.  It is not enough just to assume there is no asbestos in a premises that you own, let or in some way control.  There has to be a positive assessment of the building for asbestos and if identified, the asbestos in situ managed, and the information regarding its location and condition shared with those who may come into contact with it.

Whether you are refurbishing premises, or simply operating from them, a proactive approach has to be taken.  Even without the risk of a disturbance/exposure, the absence to manage will attract criminal penalties and certainly if anyone is exposed to it, civil claims will undoubtedly follow.  The aftermath of any exposure triggers a number of responsibilities which you must act on quickly to minimise your criminal and civil liabilities

2. Fire safety

The Grenfell Tower disaster has brought fire safety well in to the public’s thoughts and not withstanding any subsequent changes to fire safety legislation, the need to comply with all the obligations, is as important as it ever has been.

The cornerstone to any successful defence or proceedings for fire safety breaches is a comprehensive and an appropriate fire risk assessment together with training and monitoring arrangements.  The fire service will look to this document as a starting point to discover your arrangements in terms of fire safety and satisfying them on this goes a significant way to satisfying them on any other concerns that they have.

Ensuring that this is in place and making sure that it is implemented are key to compliance in this area

3. Waste management/fly tipping

Just because you don’t operate a landfill site, a recycling plant or deal with packaging waste by the hundreds/thousands of tonnes does not mean that this area of regulation escapes you.

The simple act of putting waste bins out for collection too early for your collection arrangements could attract a fixed penalty notice or fine.  Simple breaches such as this can attract enforcement notices which compel you to make particular waste disposal arrangements which could be costly in lots of ways to the business.

It is sometimes overlooked by businesses, that the obligations you have for waste management are incumbent on you, it is important to avoid prosecution and simply relying on a waste management contractor is not enough, to protect you.

4. Fatal accidents/inquests

This is the area where individuals and their businesses can experience the most terrifying experience in all their years in business.  The death of an employee or a third party attracts the attention not only of the Police, Health And Safety Executive or local authority, as well as the Coroner, but civil claims, media attention and your workforce.

Successfully managing all of these different groups and organisations, all with conflicting potential agendas, can seem overwhelming.  Ensuring access to specialist advice is crucial in protecting you and your business against a situation that could last for many years, with significant consequences to all concerned.

5. Food safety

Whether you are a manufacturer, retailer or involved in its preparation, all elements of food safety have the potential, if they go wrong, to fatally damage your business.

The need for a robust system of training and procedures to ensure the integrity of the food that you produce, serve and sell is critical, in addition to effective supervision.

If the worst happens and you are investigated or prosecuted, we can help you and have successfully defeated a number of prosecutions, particularly where clients have been able to demonstrate that their systems are sufficient, but individual employees have failed to carry out what the client’s systems and training requires.

6. Notices

Notices, whether they are Improvement, Prohibition, Food Hygiene, Waste Management or Fire Safety, are a significant “sanction” in the hands of a regulator.  Unfortunately,  on a number of occasions, clients do not recognise their importance until potentially they are too late.

These notices can restrict and in some cases, end businesses when they are widely drafted, vague and too restrictive.  It is essential to ensure notices, where they cannot be complied with or are unreasonable, are appealed and defeated or varied to make them more proportionate.

We regularly assist clients in this process and prompt action upon receipt of any notices is essential to prevent the consequences of an ill-judged notice.

7. Contractor Management

Despite all of the safeguards, training and procedures you can develop and implement for your own employees, how sure are you that any contractors you engage are similarly responsible?

Regularly, we see prosecution of clients where their contractors have let them down, and in so doing, have attracted a prosecution.

Ensuring clear demarcations of what contractors should be undertaking on a task and what you will be undertaking are important to ensuring that in the event of an accident the responsibility and in some circumstances the blame, can be apportioned correctly.

Carrying out the appropriate due diligence before appointing contractors and vetting their documentation are equally as important and unfortunately on many occasions, overlooked.

Making sure you have the most appropriate contractor to undertake the role is vital and we can help in the due diligence process and making sure that all parties know what their responsibilities are.

8. Regulatory Visits

Unfortunately, time and again clients suffer investigation and prosecution due to their employees not recognising the importance of prompt and effective action when they are subject to a regulatory visit.  Regularly, inspectors call at premises and are not treated with the importance that their presence requires.  The absence of documentation on site for inspection, examples of poor practice and staff who are unclear on their duties and responsibilities all can trigger an investigation and prosecution.

It is essential to ensure that all staff know the powers of the regulators that could call, what they can and can’t do and how to deal with them.

The reassurance an employee can give to inspectors in the initial few minutes of a visit, can be a difference between a prosecution and not.  We can help train staff on what they should and shouldn’t be doing, as well as provide checklists and other documentation to assist on how to deal with visits and what potentially can develop from them.

9. Preventing Claims – Accident Investigation

Experience has shown that prompt investigation of all accidents and near misses is a powerful deterrent to personal injury claims, it can also defeat criminal prosecutions.  Where accidents are not investigated promptly and thoroughly, they allow employees potentially to exploit this in claims, which insurers or you  cannot defend and the same is true of customers and other third parties.

If there is no investigation then simply in most cases this means that the Claimant or Prosecution’s version of events is accepted if you can do nothing to challenge it.  We have helped clients over a number of years create efficient and comprehensive, but simple accident investigation protocols, assisted with investigations ourselves and this has translated into the successful defence of claims and prosecutions.

10. Documentation and Systems

Without the relevant documentation and systems to demonstrate legal compliance, we have seen that clients are doomed to continually have to settle claims and the associated increased premiums that brings or pay large fines in Court for failings.  Had appropriate systems existed it could have demonstrated a vindication of a client’s actions or mitigate the amount of costs, damages or fines paid.

The need to constantly review your documentation and systems is essential to achieve compliance, but all too often it is overlooked at a client’s cost.

We have helped prepared and implement procedures and systems than can protect your business whatever the problem could be.

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The Home Office has issued revised Guidance under section 182 of the Licensing Act 2003. Is there anything of substance in the changes?

As readers will recall from my previous articles, the Government has knocked back most of the changes which were recommended after the House of Lords’ review of the Licensing Act 2003.  However, the Government did suggest that a number of changes could be introduced via the section 182 Guidance which now seems to be reviewed annually by the Home Office. On close reading of the new Guidance, only a small number of the proposed changes has been incorporated in this revision, but they are important changes, nonetheless.

The first change in the revised section 182 Guidance document is that the Regulators’ Code under the Legislative and Regulatory Reform Act 2006 is included as a document for all parties to give consideration to.

The first new section in the guidance is at paragraph 8.3.8 – 8.40, headed “Entitlement to work in the UK”.  Three additional paragraphs have been added to the Guidance document, which give clear advice as to the evidence that needs to be adduced to satisfy Licensing Authorities that individuals applying for premises licences for the sale of alcohol or late night refreshment are entitled to work in the UK.

One area where we have had inconsistency across the country is what needs to happen with outdoor areas when applying for a new premises licence. Hopefully the new additional paragraphs below will now remove this inconsistency.

“Beer gardens or other outdoor spaces

8.35 Applicants will want to consider whether they might want to use a garden or other outdoor space as a location from which alcohol will be consumed. The sale of alcohol is to be treated as taking place where the alcohol is appropriated to the contract. In scenarios where drink orders are taken by a member of staff in the garden or outdoor space and the member of staff then collects the drinks from the licensed premises and returns to deliver them to the customer this would be treated as an off-sale and any conditions that relate to off-sales would apply.

8.36 In such cases it will be not necessary to include the garden or other outdoor space on the plan as part of the area covered by the premises licence. However, it will be necessary for the applicant to include the garden or other outdoor space on the plan as part of the area covered by the premises licence if the intention is to provide a service whereby drinks are available for sale and consumption directly from that area (i.e. the provision of on-sales). This would apply in the case of an outdoor bar or a service whereby a member of staff who is in the garden or outdoor space carries with them drinks that are available for sale (without the need for the staff member to return to the licensed premises to collect them).

8.37 If the beer garden or other outdoor area is to be used for the consumption of off-sales only, there is no requirement to show it on the plan of the premises, but the prescribed application form requires the applicant to provide a description of where the place is and its proximity to the premises.”

The first really significant change is at paragraph 9.12 of the Guidance.  In the previous version of the Guidance, issued in April 2017, the Police had retained their position as having heightened status in making representations under the crime and disorder licensing objective.

The heading “representations from Police” has now been incorporated into the section “the role of responsible authorities”.  This new paragraph 9.12 has now been re-written to read as follows:

“Each responsible authority will be an expert in their respective field, and in some cases, it is likely that a particular responsible authority will be the licensing authority’s main source of advice in relation to a particular licensing objective.  For example, the Police have a key role in managing the night time economy and should have good working relationships with those operating in their local area.  The Police should usually therefore be the licensing authority’s main source of advice on matters relating to the promotion of the crime and disorder licensing objective.  However, any responsible authority under the 2003 Act may make representations with regard to any of the licensing objectives, if they have evidence to support such representations.  The Licensing Authority must therefore consider all relevant representations from responsible authorities carefully, even where the reason for a particular responsible authority’s interest or expertise in the promotion of a particular objective may not be immediately apparent.  However, it remains incumbent on all responsible authorities to ensure that their representations can withstand the scrutiny to which they would be subject at a hearing”.

This marks a significant departure from the previous position, whereby only the Police were given a heightened status in relation to their representations.

It appears from the rewording of paragraph 9.12 that representations made by the Police have been downgraded from the heightened position that they enjoyed previously, and that now all responsible authority representations fall to be considered in a similar light.

The next additional paragraph in the document is at paragraph 13.11 in the appeals section to the guidance.  This states:

“It is important that licensing authorities also provide all parties who were party to the original hearing, but not involved directly in the appeal, with clear reasons for any subsequent decisions where appeals are settled out of court.  Local residents in particular, who have attended a hearing where the decision was subject to an appeal, are likely to expect the final determination to be made by a court”.

It is my experience that there has been a distinct lack of voluntary compliance in this regard, and it is interesting that this has now been set out in the section 182 Guidance.

We have been involved in many cases where appeals have been settled without the original objecting residents being involved in the process.  In all of my appeals where I have represented the London Borough of Newham, we have always looked at any compromised position in an inclusive manner with residential objectors, to see whether they agree to the compromised position being resolved by a consent order, thus avoiding the need for court time of an effective appeal.

There has been a considerable redrafting of the section of the Guidance dealing with cumulative impact polices.  It is worth reading this whole new section.  In particular, paragraphs 14.24 to 14.28 have seen significant change.  Paragraph 14.34 of the new Guidance replaces paragraph 14.29 and is more prescriptive in the guidance given in relation to the steps to be taken in publishing a cumulative impact assessment.

A new section has been introduced, entitled “reviewing the CIA”.  Paragraphs 14.35 to 14.38 detail the steps that a Licensing Authority should take when reviewing the cumulative impact policy applying to a particular area.  A number of changes have also been highlighted within the section “effect of cumulative impact assessments”.  This replaces the section “effect of special policies”.  The two sets of paragraphs need to be read side by side in order to understand the Guidance properly.

We were promised changes after the House of Lords’ review and a careful assessment of the current section 182 Guidance is advisable before making any applications in cumulative impact policy areas.

So, all in all, there have been fairly modest changes to the latest iteration of the section 182 Guidance document.  Nonetheless, some of these changes do have an impact on the licensing process and are worthy of careful attention. To view the full revised Guidance click on the link below, and feel free to email me to help with any specific enquiries:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/702660/Revised_guidance_issued_under_section_182_of_the_Licensing_Act_2003__April_2018_.pdf

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Gambling Commission Reminds Operators About Fee Categories

The Gambling Commission (“GC”), in its latest E-Bulletin, has reminded operators that they must ensure that their licence sits within the correct fee category.

Due to the timing of the coming into force of the Gambling Act 2005 and its associated transitional period, July every year sees the issuing of the bulk of annual fee demands. Your annual fee must be paid on or before the anniversary of the issuing of your operating licence.

Gambling operators are required to provide three years’ financial projections when they apply for an operating licence, and the application and annual fee are dictated by gross gambling yield (“GGY”). GGY is, broadly speaking, defined as the total amount received in stakes minus prizes paid out and estimating this, particularly in the case of a start-up, can be an art rather than a science – expectations may be exceeded, or not be met.

This means that your operating licence may be sitting in the wrong fee band and that you may be paying too much, or too little for your annual fee. I often am asked by clients as to what they should do, or would have to do, if this proves to be the case and I know that it does cause some anxiety.

The simple answer is that you must apply for an operating licence variation to either go up, or drop down, a fee category (or more).

There is some good news: the GC’s advice is that the variation process should be completed “as soon as possible” – this suggests to me that it will not penalise operators who have already inadvertently slipped into a higher fee category than originally envisaged, for example. Of course, those who may be aware that they are in the wrong category and have failed to disclose it to the GC, or who are deliberately under-declaring their GGY, are in breach of their duty under the Licence Conditions and Codes of Practice to co-operate with the GC in an open and transparent manner and face a real prospect of enforcement action.

The other piece of good news is that the GC fee for altering your GGY band – whether up or down – is a fixed fee of only £25.

The application may be made via the eServices link on the GC website. Please contact me at anna@www.woodswhur.co.uk, should you require any assistance.

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Changes to the Licence conditions and codes of practice – April 2018

In this article, Andy Woods looks at the new version of the Licence Conditions and Codes of Practice (“LCCP”) and, in particular, highlights some of the key changes.

In many ways the LCCP should be the heartbeat of any gambling business and should form the basis of policies and procedures implemented by all gambling operators.  The Gambling Commission (“GC”) defines the LCCP as setting out “the requirements you must meet in order to hold your operating licence and your personal licence.  It is a very important part of running your business…”

It is a general requirement of the LCCP that all operators keep themselves up to date with any changes to legislation and to the LCCP and it is extremely important that operators understand that the LCCP is a changing document and updates and that amendments are made regularly, to take into account developments and innovations in the industry and to set out the most effective way of promoting the licensing objectives, in particular, promoting social responsible gambling.

The LCCP is not a “one size fits all” document, as there are sector specific sections and, if at all possible, the GC will make it clear what it expects operators to achieve in certain policies and procedures but allows them to write their own policies and procedures to deal with its requirements.  What is relevant to a Mayfair Casino dealing with high stake customers may not be relevant to an operator who only trades one betting shop.  However, the general principles that both will have to abide by remain the same.

The latest LCCP came into effect on 4 April 2018 and there are particular changes relating to Society Lotteries and the regulatory data that is to be provided to the Gambling Commission.  These were the two matters that the Gambling Commission consulted on in 2017.  There have also been minor changes to the social responsibility code provisions 3.5.3 and 3.5.4 and an update to the reference for the online portal for information at 15.3.1.

  1. The requirement to report the number of Suspicious Activity Reports (“SARs”) on regulatory returns has been removed and the information on discounted relationships will be collected through the key events reporting mechanism (via the eService Portal on the GC website). This change to the LCCP requires discounted relationships to be reported alongside information on SARs as key events.
  2. Information about game faults which result in over- or under-payment to customers needs to be reported as a key event.
  3. The existing requirement to report group advertising to a new jurisdiction has been widened to include a new requirement to report where there has been sustained/meaningful generation of the 3%/10% threshold being passed for the wider group.
  4. The definition of “low frequency lottery” has been updated to include those lotteries offered by local authorities.
  5. A new social responsibility code provision has been added to require operators to publish the proportion of lottery proceeds returned to the purposes of the society or local authority.

I am sure that some of the above points will come up at our seminar at The Hippodrome Casino on 8 May 2018.  There are still a few places available and if you would like to come please contact sarah@www.woodswhur.co.uk.

If you have any questions in the meantime on the above, please do not hesitate to contact me.

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Licensing Hours Extended for the Royal Wedding.. but just for alcohol

This article looks at the Government’s decision to extend licensing hours to mark the wedding of Prince Harry and Meghan Markle on 19 May 2018 but notes that the extension only applies to the sale of alcohol.

Earlier this year, the Government consulted as to whether or not to extend licensing hours for the Royal Wedding of Prince Harry and Meghan Markle on 19 May 2018 and after the consultation period ended, the Government decided to make an Order to extend licensing hours on the following dates and times:

  • 11:00pm on Friday 18 May to 01:00am on Saturday 19 May
  • 11:00pm on Saturday 19 May to 01:00am on Sunday 20 May.

It is to be noted however, that the effect of this Order allows licensed premises to remain open until 01:00am for the sale of alcohol but it does not apply to the sale of hot food or provision of regulated entertainment.

Any restaurant, therefore, that wishes to stay open later and use the extended hours  may have to apply for a Temporary Event Notice if it wishes to sell hot food and similarly, advice will have to be taken as to whether any exemptions under the Live Music Act 2012 apply, or whether an application for a Temporary Event Notice is required for entertainment.

In announcing the decision, Amber Rudd said: “The Royal Wedding is a chance for communities across the Country to join together and celebrate this momentously happy occasion for our Royal Family and for our nation.  As shown by the support for the proposal to extend licensing hours, it is clear that the public back the idea of having more time to raise a glass to Prince Harry and Meghan Markle on a day of national celebration”.

The Home Secretary has special powers to allow licensing hours to be extended for a celebration period to mark an occasion of exceptional international, or local, significance and since the power was introduced in 2003, it has been used a number of times, including on the occasion ofthe Duke and Duchess of Cambridge’s wedding in 2011, the Queen’s Diamond Jubilee in July 2012 and the Queen’s 90th birthday celebrations in 2016.

If anyone requires advice as to whether or not a Temporary Event Notice is required on this occasion for the sale of hot food or provision of regulated entertainment, please contact me at andrew@www.woodswhur.co.uk.

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Paddy Whur saves the Shindig Festival

As my current workload has been largely wrapped up with live music venues and festivals, I am very pleased to say that I have resolved issues on behalf of Shindig Weekender with the Licensing Authority and objectors in Yeovil.

My clients had attended a Licensing Sub-Committee for this year’s premises licence for the Shindig Weekender in May. As a result of opposition received from Councillors and residents, the hours of the premises licence were pulled back, to such an extent that the festival was about to be put at risk. If the hours had not been rectified, there was a real risk that my clients would not have been able to hold the festival that they wanted to, and this could have had a big impact on festival-goers attending Weekender.

Shindig Weekender is one of the Country’s few genuinely “boutique” festivals, presenting an opportunity to experience acts up close and personal.

This year’s line-up includes Soul II Soul, Stereo MCs, Mr. Scruff, Norman Jay and a huge undercard of fabulous talent.

As well as this, there will be a comedy and cabaret tent which is headlined by Phill Jupitus.

The event had sold out and there was obviously  a significant fear that, with the reduced hours, the line-up would not all be able to play at the times the organisers wished.

I was instructed after the initial Sub-Committee decision.

We lodged an appeal immediately to Yeovil Magistrates’ Court and were under considerable time pressure to resolve the issues to allow Weekender’s hours to be advertised and for the event to take place as promoted.

Fortunately, the Council were particularly proactive and were agreeable to meeting us on a “without prejudice” basis to discuss whether we could settle the appeal without the need for a contested hearing. None of the responsible authorities had objected to the application and there were a small number of local residents and one Councillor who had persuaded the Licensing Sub-Committee to prune the hours of the event. I am delighted that my clients’ acoustic expert and the very helpful Environmental Health Officer of Yeovil Council worked together to improve the event management plan in relation to the event and, in particular, the potential for noise nuisance from the festival.

A significant amount of work had to be undertaken very quickly but as a result of this, the Authority were persuaded to compromise the appeal and allow the hours that were applied for to be substituted for the shorter hours that had been granted at the Licensing Sub-Committee hearing.

This was a fabulous example of all parties working together to negotiate a workable resolution, without the need for a matter going to a contested hearing at the Magistrates’ Court. I hope everybody has a fabulous time at the Shindig Weekender in May.

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Paddy Whur starts with a big win for the MJR Group

Contested hearings are always stressful, but when it is the first hearing for a new client, that adds significantly to the challenge. I have just being successful in extending the hours at the Tramshed, one of MJR Group’s major venues, against Environmental Heath, Police and Ward Councillors and local resident opposition.

The MJR Group is an events promotion and venue development company based in Bristol. They manage and own multiple venues in major UK cities, as well as promoting touring productions and festivals throughout the UK, Australia, New Zealand, Dubai and Ireland. They are one of my most interesting recent new client acquisitions and I am delighted to be acting for them. The MJR Group operate from the following venues:

  • The Engine Rooms, Southampton;
  • Marble Factor, Bristol;
  • Motion, Bristol;
  • The Globe, Cardiff;
  • Tramshed, Cardiff;
  • Dingwalls, Camden;
  • Plug, Sheffield; and
  • The Assembly, Leamington Spa

Our application for the Tramshed in Cardiff was to extend the hours of operation from Midnight to 3AM on 20 occasions a year to allow Club Nights to be operated at the venue, with quality, high-end DJ talent being booked for these events.

The company has invested over £1m in the refit of the Tramshed, which is a phenomenal premises on the outskirts of the City Centre in Cardiff. The former Tramshed had been derelict for a significant number of years before MJR Group took it over and invested heavily in it. The Police, residents and Ward Councillors had concerns that our extension in hours would not promote the licensing objectives of:

  • The prevention of crime and disorder;
  • The prevention of public nuisance; and
  • The promotion of public safety

The Police produced evidence of dispersal issues arising from the premises when live music events are finishing at midnight.

I was able to explain to the Licensing Sub-Committee that there would be significantly less impact from the events that my client wished to offer, on the basis that there would be a much more gradual dispersal from the premises from a club night than a live music event. The issue with live music events is that there is an immediate finish to the concert, with up to 1200 people leaving the venue very quickly. This wouldn’t be the case with the extended hours events, where there would be a much more gradual dispersal from the premises.

In addition, as a result of the application, my clients had agreed to offer a significant number of additional conditions to assist in promoting the licensing objectives. On top of all of this, they had devised significant new dispersal policies with the use of a rear area for taxi pick-up points and creating a new dispersal zone towards the City Centre and away from residential properties. Whilst the police still opposed our application, they were very fair during the hearing, telling the Licensing Authority that, although they didn’t think the extension in hours would promote the licensing objectives, they felt that the premises were not problematic, on the whole.

The incidents of crime and disorder at the premises were significantly low for the number of people that the premises have seen coming through the doors in the last 2 and half years since they have opened. The Licensing Sub-Committee felt, on balance, that they could allow the application in the terms that we sought, as long as the additional conditions that we offered were attached to the premises licence.

My clients offered to meet with Ward Councillors and residents to explain the nature of the operation of the premises and seek advice from the residents as to improving dispersal and preventing any nuisance issues arising from the premises. I am certain that this proactive approach toward the local residents and Ward Councillors will bear fruit, not only in reducing incidents of public nuisance, but also in securing the premises’ future as a community hub, as well as a live music venue.

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Asbestos – Your duty to manage it

Two recent instructions by clients concerning exposure of their employees and contractors to asbestos has prompted me to discuss the issue in this edition.

Although the use of asbestos has been prohibited for a number of years in building and refurbishment works, it is still present in a vast number of premises across the country. Even premises which you consider to be relatively modern may well still present hidden dangers from asbestos.

Whether you own a building, are a tenant or, indeed, have some degree of control over a building without any form of contract or agreement, you will be deemed to have a duty under the relevant asbestos regulations. This means that you have an obligation to manage the threat from asbestos within the premises. Depending on the degree of control you have, this will cover all non-domestic premises and the common areas of domestic premises, such as halls and stairways.

I am constantly asked by clients about asbestos-related problems that can arise, particularly during refurbishment works. If you sublet a premises to a tenant who then carries out some refurbishment works or you carry out works yourself, there is a duty to cooperate with all the parties involved.

Normally, as the person owning or controlling a premises is best placed to understand what asbestos is present, there is an obligation on that person to share that information with those who potentially may come into contact with it, be that tenants or contractors or anyone else.

The law is quite clear on what you should you do: find out if there is asbestos in your premises and, if in doubt, make an assumption that some materials within the premises may contain it, in the absence of evidence to the contrary.

You also need to keep an up-to-date record of the location and condition of asbestos in the premises and assess the risk from it. This will allow you to prepare a plan on how you intend to manage that risk and then put that management plan into action.

In reality, it may be that if the asbestos is in good condition and is in an area that is confined, such as a locked room, that may be sufficient to manage the risk. If the asbestos is deteriorating, however, it may be that you need to secure the services of a licensed contractor to remove it or in some way manage it to prevent further deterioration.

No matter what steps you take, these need to be recorded and reviewed regularly.

Generally speaking, the best way to ensure that you are compliant is to commission a competent asbestos surveyor to produce a survey of your premises which confirms the presence or absence of asbestos-containing materials. Such a survey would effectively form the foundation of your management plan and any actions that will flow from it.

When you are commissioning work or allowing work to take place, you should share the survey and any other information that you have regarding the presence of asbestos and its condition with those who could be affected by it.

Importantly, you must always maintain a record of who you share information with and what information has been shared, to prevent any issues in the future whereby contractors or others deny being made aware of asbestos within your premises.

Clients are regularly caught out by their duty to manage asbestos and, as a result, expose themselves to civil claims by all those potentially affected by an exposure to the material, as well as prosecution for failures under the relevant regulations.

Don’t just assume that your premises does not have asbestos in it. You need to take positive action to check, to record what you find and plan accordingly.

Don’t let the first time you identify asbestos in one of your premises be when an employee or contractor is exposed to it, and you are faced with the consequences of this.

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Gambling Commission publishes its views on FOBTs

The Gambling Act requires the Gambling Commission (“GC”) to provide advice to the Government on all matters gambling, including its effects on the public. On Monday, it provided its “formal advice” to the Department for Digital, Culture, Media and Sport on the review of gaming machines and social responsibility – which, as we all know, has focussed primarily on B2 machines, or Fixed Odds Betting Terminals (“FOBTs”).

The advice was not circulated by the GC as an update or in a newsletter, which I find surprising- I heard about it on the news on Radio 4 (some of you will know that this is my station of choice) – although it is available on the GC website, here: http://www.gamblingcommission.gov.uk/PDF/Review-of-gaming-machines-and-social-responsibility-measures-–-formal-advice.pdf

It’s fair to say that the GC’s advice has caused some consternation among those campaigning for a reduction in the maximum stake for FOBTs to £2. This is because the GC has opted for a stake limit “at or below £30”.

Some might think that this represents the GC sitting on the fence – after all, “at or below £30” could mean anything between £0 and £30 – but the GC is at pains to point out that the final decision is one for Ministers to make.

The GC’s advice centres around the need to reduce the risk of harm to consumers – who are the focus of its present strategy – particularly the vulnerable. It believes that action needs to be taken, not just by government, but also by operators and the GC itself. The conclusion in the formal advice is that “the case has been made for action to be taken on B2 machines to reduce the risk of harm, and that this should include a stake cut.”

So, why has the GC not fallen in with the £2 maximum stake being campaigned for so strenuously by campaigners? The answer it gives is that it has identified four criteria to take into account in setting any maximum gaming machine stake. These are:

  • Impacts on gambling harm – the GC is concerned that merely reducing the stake might encourage players to adopt riskier strategies, play for longer or switch to other gambling products, particularly online;
  • Categorisation of gambling premises and a concern that any proposed change might mean that a “harder” form of gambling product is available in arcades, bingo halls and pubs, which are less tightly regulated than the betting and casino premises in which FOBTs are currently allowed;
  • The need to preserve consumer choice and to avoid eliminating the very popular game of roulette from betting shops; and
  • The need to take everyone’s views into account, being those of stakeholders such as Parliamentarians, Local Authorities, operators, faith groups and local residents.

It is between these competing considerations that the GC says it is for Ministers to decide. However, its advice does seek to draw a distinction between B2 slot-type machines (for which it believes that there is a case for limiting stakes to £2) and those that offer roulette, for example – the most popular game played on B2 machines – (for which its view is that the maximum stake should be £30 or less).

The GC also believes that limiting stakes is not enough to deal with gambling-related harm, and its prevention: it favours a comprehensive approach, and believes that there is a “strong case” for making tracked play mandatory across all B1, B2 and B3 machines, giving consumers access to information that will help them keep track of their play and make informed decisions about whether to continue gaming.

We’ll be monitoring this proposal carefully, as it will affect a large number of operators. The GC’s formal advice presents various matrices relating to the costs and benefits of introducing tracked play on this scale, but admits that, so far, the GC has “only limited information on the costs”, so we will have to wait to see if and how this proposal develops.

The GC’s advice has been met with a great deal of disquiet from campaigners pushing for the maximum stake on FOBTs to be reduced to £2. Tom Watson, Labour’s Deputy Leader, called the advice “deeply disappointing”, and accused the GC of having “caved in to industry pressure”. Carolyn Harris, the Labour MP who chairs the all-party Parliamentary group investigating FOBTs, said that she was confident that “Government will see past this and do the right thing, as the moral argument has been made so overwhelmingly for £2 [stake]”. John White, Chief Executive of the anti-FOBT amusement machine industry trade organisation BACTA, also weighed in, saying that “whilst a stake reduction is a step in the right direction, merely reducing this to £30 is still dangerously high…With a 20 second play duration on FOBTs, the proposed £30 stake will generate a loss of £90 within one minute. Within 10 minutes it is £900… [this] does not do enough to protect the consumers who are vulnerable.”

The GC says that it has drawn on a “a broad evidence base”, including on data from the Responsible Gambling Strategy Board and 20 billion plays on B2 machines. BACTA have rejected this as being “drawn from a narrow interpretation of a limited range of evidence and [focussed] on the theoretical rather than the reality.”

Matt Hancock, the Culture Secretary, is rumoured still to favour limiting the maximum FOBT stake to £2, but he is apparently under pressure from the Treasury, who get £700m in machine gaming duty every year, a large proportion of which is represented by revenue from FOBTs.

A decision by Government is expected in the next couple of weeks and we will, of course, update you in future editions of our Newsletter.