SWC Update & Trading Standards Legislation 15 July 2011 Mina O’Brien Buy & Support With Confidence Scheme Manager.

SWC Update &Trading Standards Legislation

15 July 2011

Mina O’BrienBuy & Support With Confidence

Scheme Manager

Contents

• SWC Update• Employment Status• Self employment & Trading Standards• Paperwork• Unfair Terms• Supply of Goods & Services Act• Consumer Credit Act 1974 Section 75• Distance Selling Regulations• Cancellation of Contracts made in a Consumer’s Home

or Place of Work etc Regulations 2008• Consumer Protection for Unfair Trading Regulations

2008.• Insurance & Health & Safety

SWC Update

• Officially launched to the public October 2011• Current membership sits at 37 providers covering diverse range of

services; 19 of which are Personal Assistants• A further 30 providers going through application process• New website now launched for all schemes• Promotion of the scheme for the forthcoming financial year includes:

– Advertising SWC in the current BWC Directory

– Featuring the scheme in a half page advert in Your County

– Advertising the scheme monthly in What’s On Magazine, and also routinely in Countrymile and Wellbeing Magazine

– Online advertising via Gumtree website and The Best of…

– Social Media campaign via Twitter @SWCConnect

SWC Update

• Held in high esteem by Adult Social Care and Cabinet• East Sussex scheme featured as an example of best

practice in a report on Universal Services published by the Department of Health

• Mentioned in a Government White Paper http://www.bis.gov.uk/assets/biscore/consumer-issues/docs/b/11-749-better-choices-better-deals-consumers-powering-growth (page 41)

• Seen as an example of best practice by other Local Authorities

SWC Update – National Picture

• East Sussex Chair focus group and support other LA’s in launching the scheme

• LA’s currently starting the scheme:– Oxfordshire – first LA in Jan 2010– Nottinghamshire launched late 2010– Brighton & Hove – launched Jan 2011– Surrey – launching soon– Southampton – launching soon– West Berkshire & Wokingham – launching soon– A further 2 Local Auhtorities have signed the Licence Agreement– In excess of 40 LA’s expressing an interest in starting SWC

• www.supportwithconfidence.co.uk

Feedback from members

• Mixed feedback from members about a number of issues:– Application process and training– Getting work– Employment status– Support from the Scheme and County Council

• Members and applicants can approach the Support With Confidence team at any time for advice on these issues

Employment status

• Difficulties for both Personal Assistants and Service Users / Self funders on this issue

• What are the rules?• In summary, HMRC says that where a Personal

Assistant:– works for someone on a long term contract – and their employer tells them what to do, how to do it

and when it should be done • this will almost always mean that the Personal

Assistant is employed and is not considered to be working on a self-employed basis.

Employment Status

• How can I get more information and advice?

• Deciding whether an arrangement is employment or self-employment is complex. The guidance we give you is not enough to make a proper decision about employment or self-employment in the area of Personal Assistants

Employment Status

• On the HMRC website:• http://www.hmrc.gov.uk/employment-status/index.htm• http://www.hmrc.gov.uk/paye/employees/start-leave/

status.htm • The Employment Status Indicator Tool is a good way

of determining whether the arrangement can be undertaken on an employed or self employed basis:

• http://www.hmrc.gov.uk/calcs/esi.htm • HMRC Self Employment Registration Hotline: 0845

915 4515• HMRC New Employers Hotline: 0845 6070143

Self employment & Trading Standards

• If a service that you are providing is capable of being undertaken on a Self Employed basis then Trading Standards legislation (amongst other legislation) applies

Paperwork

• Companies Act 2006 – governs information that must be given to customers:– Proprietor information or partner information or Ltd

Company Name must be displayed– Address at which legal documents can be served e.g.

home address if working from home or Registered Office address if an Ltd or LLP

– Place of registration and Company Number (if applicable)

– Also must be on emails and,– On display on premises if the public can visit

Paperwork - contracts

• It is best practice to note the particulars of any agreement in writing prior to the contract beginning

• This is so the other party can confirm their acceptance of the agreement or vary it if need be

• It also acts as a record in the event of a grievance or complaint

• It will also confirm charges• It will set out set any terms that may be specific

to that contract

Paperwork - contracts

• Standard terms of business are regulated by the Unfair Contract Terms Act 1977 and by the Unfair Terms in Consumer Contract regulations 1999

• These acts render Unfair terms unenforceable in consumer contracts i.e. a business cannot rely on them and a consumer can disregard them

• Only the 1977 Act provided business to business contracts with some safeguards but this is generally subject to a test of reasonableness

• A judge would ultimately decide whether a term is unfair.

Unfair Contract Terms Act 1977

Deals with exclusion clauses in relation to:• Implied terms within the Sale of Goods Act e.g.

“No refunds under any circumstances”• Negligence based liability• Limiting liability e.g. for losses arising from a

breach of contract• Any term falling into the above 3 would be

deemed to be “Void” in contracts with consumers.

Unfair Terms in Consumer Contracts Regulations 1999• Aims to create a level playing field

between businesses and consumers

• OFT definition: A standard term is unfair if it creates a significant imbalance in the parties rights and obligations under contract, to the detriment of the consumer, contrary to the requirement of good faith

Unfair Terms in Consumer Contracts Regulations 1999

• Applies to standard terms in business to consumer contracts

• Does not apply in business to business contracts

• Does not apply to specially negotiated terms

Examples of Unfair Terms

• “Goods are sold as seen: we accept no liability for faults discovered after purchase”

• “No liability is accepted for damage to décor caused during installation.”

• “No liability is accepted for consequential or indirect loss”

• “Payment must be received in full before work can commence”

Source: OFT “Unfair Standard Terms”

Support from Trading Standards

If you are drawing up any paperwork and wish for us to look at it to ensure compliance, we will happily do so.

Please do let us have sight of a typical contract once you have one available.

We will provide guidance on terms should you wish to begin using any

http://www.oft.gov.uk/shared_oft/business_leaflets/unfair_contract_terms/oft143.pdf

Supply of Goods & Services Act 1982 (as amended)

• Supply of Goods & Services Act 1982 (as amended)• Businesses must do their work

– With Reasonable Care & Skill– Within a Reasonable Time and,– For a Reasonable Charge

• Goods supplied in the course of a service must be– Of Satisfactory Quality– Fit for their purpose and, – As described

• Should an issue arise, the business should be given the opportunity to put the matter right in the first instance

• If this business is unwilling/unable to do so, then the customer may seek damages (compensation)

Supply of Goods & Services Act – Examples - 1• Customer goes on Honeymoon to paradise

location and takes lots of memorable shots • Comes back home and hands the film to local

photographic lab• Photo lab loose the film• Business offer customer the quantity of film that

they had lost plus a couple of free rolls to compensate

• Customer not happy with businesses offer and feel that they are entitled to more

Supply of Goods & Services Act – Examples - 1• Generally in law you are only entitled to the financial

value of what you have lost, so it may be viewed that the offer of film is not unreasonable

• In certain contracts however, consumers can argue emotional distress, loss of enjoyment or inconvenience. These contracts typically are for honeymoons, holidays etc.

• Case law established in a similar case where a customer tried to claim for the cost of the holiday that a Photographic book containing images of the place that he had photographed was suitable compensation and awarded damages on that basis

Supply of Goods & Services Act – Examples - 2• Consumer and trader agree verbally for work to be done

to a roof• Trader gives consumer two options: cheap and more

costly. The cheap solution is more of a temporary fix and the second option is more durable. The business does not document the advice given

• Consumer opts for the cheaper option and work goes ahead

• A few months later bad storms hit and cause the roof to leak

• The trader offers to put the work right but the customer wants a new roof.

Supply of Goods & Services Act – Examples - 2• The business can argue that the consumer

ignored their professional advice, but this is not documented

• Therefore the customer can similarly argue that the business has not carried out their work with reasonable care and skill

• The remedy could therefore be the cost of replacing the roof if this were necessary

• In order to show this was necessary the consumer would have to prove it by way of an independent report

Supply of Goods & Services Act – Examples - 2• The consumer should invite the business to

share the costs of getting an independent report in order to mitigate their losses and save both parties instructing separate reports

• The report should establish where a new roof is a reasonable remedy or whether a repair is all that is needed

• The report will not help the business in itself, who will then have to argue their side of the story without any proof of what was agreed

Consumer Credit Act 1974

• Section 75 – Equal LiabilityThis section makes credit card/finance companies jointly & equally liable for a breach of contract and misrepresentation if the goods/service purchased are over the value of £100 and under £30,000

• This applies to consumers, sole traders and partnerships but not to Limited companies

Distance Selling Regulations 2000

• Covers contracts concluded at a distance, including contracts agreed over the phone

• If you are caught by these Regulations, you must give:– Certain information in advance, such as your name, address, the goods

you are selling or the services you are providing, the price (including all taxes), delivery cost, delivery arrangements, and the customers’ right to cancel

– Send customers an order confirmation giving information such as your postal address and cancellation information

– Allow customer a seven working-day cooling off period during which they can cancel

• Customers can agree to work beginning before the cooling off period ends.

• Businesses however need to give the customer the correct paperwork to the customer to comply with this legislation

Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008

• Cover all contracts over the value of £35 for goods or services which are agreed in the consumers home or place of work etc

• This applies whether the visit is solicited or unsolicited.• A ‘Notice of the Right to Cancel’ the contract must be given to customers

upon agreement of the contract.• The customer must sign part of the Notice to show they agree to the work

beginning prior to end of the 7 day cooling off period• If they choose to cancel after the work has been done, they are liable to pay

a reasonable price for the goods supplied or work that’s been done• Failure to give the Notice of the Right to Cancel may constitute a criminal

offence http://www.eastsussex.gov.uk/business/tradingstandards/detail.aspx?

ref=248271&class=Eng%3bBusi%3bAdv%3bFT&date=23/05/2010%2000:00:09 •

Consumer Protection for Unfair Trading Regulations 2008.

Legislation that absorbed Trade Descriptions Act & pricing legislation

Prohibition to not trade unfairly 31 banned practices covering misleading

or high pressure selling techniques http://www.oft.gov.uk/shared_oft/

business_leaflets/cpregs/oft979.pdf

Insurance & Health & Safety

• You will need adequate insurance for your business

• Paul Scully Insurance Services – Peacehaven (BWC Member)

• You will need to have regard for relevant Health & Safety legislation

Health & Safety Executive Tel 0845 345 0055 web: www.hse.gov.uk/

Support for Members• If something goes wrong or you need advice…

– Issues regards the contract/business advice: Trading Standards

01323 463440

– Any other issues: Adult Social Care Quality & Monitoring team

01323 466548

– Concerns for the well being of a client/Safeguarding issue: contact Social Care Direct

0345 6080191

E: [email protected]