Blog for our Registered Provider Clients
Coronavirus or COVID-19. Our blog for our Registered Provider clients
Contingency planning for the impact of COVID-19 has become a necessity. As with any contingency planning, attempting to identify all of the legal and business issues for an RP is problematic. Plans will need to cater for a number of possible scenarios. Here are some practical tips and items to consider for your “COVID Plan”. We will be updating our blog to cover common themes as they emerge.
For further articles on COVID-19, why not take a look at our Publications page where we are sharing insight and information to help keep our clients up to speed.
Practical tips and considerations
Care Homes will be well prepared for the annual threat of norovirus or influenza, but how are they managing the impact of a potential coronavirus (Covid-19) outbreak?
Our cross-departmental care team are working closely with a number of care home providers on issues surrounding employment, property and housing management, in addition to general housing issues which we have commented on in within our dedicated blog, these include:
- Statutory sick pay for care support staff who are needing to self-isolate
- Management of care homes, supported and sheltered living schemes including restrictions on access to third parties (e.g. relatives)
- Management of common parts and restrictions on access to enforce self-isolation, which are causing logistical issues
- Consideration of deprivation of liberty safeguards and whether they are required or if current authorisations need revising
- Applications to the Court of Protection/injunctive relief where there is an urgent risk to health and safety
- Compliance with leases and tenant covenants
- Care contracts and the notification/liaison with Local Authorities and Clinical Commissioning Groups (CCGs)
Devonshires can also offer support to care providers in these challenging times in areas including:
- Governance and risk management
- Advice on safeguarding of service users and staff
- Regulatory compliance and the approach regulators are taking towards coronavirus management
For more information, advice and guidance, please contact either Donna McCarthy / Lee Russell (housing management), Caroline Mostowfi (property), Katie Maguire (employment) and/or Christian Barnes (regulatory).
Each RP should have a crisis management plan, or similar. It is contemplated by the Governance, Finance & Viability Standard.
The Company Secretary and the Chief Executive need to review the existing plan to ensure that it reflects, among other matters, the Government’s containment measures. The plan should also cover who has authority to make immediate decisions and a consistent and controlled communication strategy with not only staff but also principal stakeholders such as the Regulator. In addition, arrangements for the ongoing timely provision of data required by external stakeholders should also be covered.
For more information on crisis management, please contact Andrew Cowan
If all or some of the RP’s offices are closed, there is the potential for missed deadlines and service disruptions. To mitigate this risk the finance and development teams should review the key business agreements. For example:
- Contract deadlines – pay attention to any key completion, renewal or termination dates that fall within, say, the next 90 days. All key “trigger dates” should have been logged following closings, in the teams’ electronic diaries. If not, ask external lawyers to review contracts and give them access to key staff diaries;
- Notices – most contracts will deem that a notice is received by the RP if it is sent to a specified office (often the registered office). Such notices may trigger termination or start the clock running for a deemed consent. Even if the office is closed, consider if there is a way to check hard copy mail received each day.
- Construction contracts – are there any difficult time critical sites where the counterparty may seek to defer its construction obligations claiming “force majeure” and seek more money or time. The development department needs to identify the relevant contracts and then look at the contractual provisions and the facts, in conjunction with their lawyers, and then assess the likelihood of a claim for more time or money succeeding.
- IT contracts – the IT team may undertake a similar exercise in relation to any business and/or development critical IT contracts where IT suppliers may want to invoke force majeure because of issues with their own staff or sub-contractors. If the RP is itself providing IT based services, check that it can resource its own commitments and meet agreed deadlines; and
- Property documents – in addition to the contract deadline and notices points discussed above, ascertain which property completions, and other key property document signings are coming up within the next 90 days. Game plan how monies might be transferred and documents signed and sent notwithstanding possible office closures and disruption in courier services. Where possible, consider arranging weeks in advance.
- Is Covid-19 a force majeure event under your contracts?
- Moving to the Cloud: 10 Things
- Commercial tenancies – 10 steps to take to protect your assets in unfamiliar times
- The Coronavirus Act – Commercial Tenancies
Furthermore, you can also take a look at our recent article which asks, “Is Covid-19 a force majeure event under your contracts?”
The Company Secretary will need to review the rules and standing orders and check what can be delegated to individual members of staff, the ability of boards and committees to hold virtual meetings, and establish procedures for signing agreements and executing deeds by key individuals remotely, without a seal. Remember that returns to regulators, auditors and key stakeholders will need to be made on time. Consideration should be given to:
- Changes to sealing process
- Powers of Attorney, their use and forms (including board authorities)
- Electronic signatures
- Delegations and controls/risk mitigation
- Constitution restrictions
- Different legal entities within the group and joint ventures
If funds need to be drawn down under a facility, the treasury team will need to assess how long it will take to satisfy the CP’s (particularly under a development facility), without access to offices. Holding more cash than normal may be a reasonable response.
For more information on funding transactions, please contact Julian Barker
If convened, consider notifying members now of an adjournment. If not convened, defer or consider one of the other options for holding meetings.
- COVID-19: Impact of duties on company directors
- International Corporate Governance Network response to COVID-19
The HR department will need to review and assess what changes may be necessary or appropriate to the RP’s HR policies covering such matters as absenteeism, leave and flexible working.
Employers have a legal duty to ensure the health, safety and welfare of their employees so far as is reasonably practicable. The duty includes the provision of information and the provision of a safe working environment.
HR will need to consider what payment terms should apply. Examples include where staff cannot work from home but ought to self-isolate (either with or without symptoms) or cannot attend work because their office building has been closed down, or where staff need to be at home in order to look after children sent home from school. The Government has already announced changes to SSP rules. It also anticipates that up to 1/5th of the UK workforce could be off sick at the same time.
- COVID-19 Recovery: To Return or Not Return
- The Future of the Furlough: The Coronavirus Job Retention Scheme extended until the end of October
- Is furlough possible for organisations in receipt of public funding for staff costs?
- Lockdown relaxation – 10 key people issues
Click here for more information on the HR and employment law implications in our blog including an article on the Coronavirus Job Retention Scheme. Please contact Kirsty Thompson for more information.
Use text, email and web portals to ensure as far as possible that residents can continue to access your services remotely. Think about continuing care for vulnerable residents in conjunction with other agencies. Supported housing and care operations will need to have in place their own bespoke arrangements to protect staff while maintaining services to residents.
- Adapting to challenges of COVID-19: step-down & temporary accommodation
- COVID-19: An Update on Possession Claims
For more information, please contact Nick Billingham
Courts are likely to close for all but very urgent applications. We expect notification in due course from the Lord Chancellors Department.
If difficulties are foreseen for those giving affidavits or witness statements, suggest alternative arrangements, including the agreed service of unsigned approved drafts, with a signature to follow. Again, ensure all members of the teams involved in disputes have key dates logged in their electronic diaries
For more information on disputes, please contact Nick Billingham
Review your insurance policies for business interruption or event insurance, and check to see whether COVID-19 or SARS related illnesses may be covered. The wording of the policy is critical. Remember to comply with, for example, all policy “Conditions Precedent” – for instance, notification of the claim to insurers as soon as possible.
The principals of travel, business interruption insurance and force majeure contractual provisions that normally apply can be found in our latest article, “Insurance and contract issues arising from Covid-19″. All policies have different wordings, and policy cover will differ as will the application of the policy wording.
Consider which additional staff need to be added to the existing agile working arrangements. In addition, ensure all staff are aware of remote access procedures. Remember practical steps such as ensuring that when staff leave the office, land line extensions are forwarded to mobiles.
For more information on agile working, please contact Michelle Mullen
The current pandemic and advice from Government is challenging employers, contractors and sub-contractors up and down the country. Click here to read our briefings on this subject including: ‘Should construction sites be closed?’
- Update: Building Safety Fund
- Government response to the ‘Building a Safer Future’ consultation
- The effects of Covid-19 on essential safety works
For more information, please contact Mark London.
Companies House has announced the following measures to help ease pressure on businesses during the Coronavirus outbreak:
- Filing accounts: Companies can apply online for an automatic and immediate 3 month extension to file accounts if the company’s accounts will be filed late because it has been affected by COVID-19. This will not change the due dates for future accounts. The application must be made before the company’s filing deadline. However, if your company has already extended their filing deadline or shortened their accounting reference period, it may not be eligible for an extension.
- Late filing penalties: If you do not apply for an extension and your company’s accounts are filed late, an automatic penalty is imposed by Companies House. The registrar has a limited discretion not to collect a penalty and has stated that appeals based on COVID-19 will be considered.
In addition, Companies House has made changes to its services during the Coronavirus outbreak:
- All same day services have been suspended, this includes same day incorporations (companies/LLPs) and changes of name
- The contact centre is now closed. Queries should be sent by email to firstname.lastname@example.org
- Many of the offices are closed to the public. Post usually sent to the London office should be sent directly to the Cardiff office address (Companies House, Crown Way, Cardiff, CF14 3UZ)
- All paper applications to restrict the disclosure of information under sections 243, 790ZF and 790ZG of the Companies Act 2006 have been suspended. Applications should be made online
- Application to remove a director’s home address from the public register should be submitted as a paper form together with the cheque or postal order and sent by post. To ensure the application is not delayed you can also email a copy of the form to DSR@companieshouse.gov.uk
- Invoices should not be posted, they should be emailed to email@example.com
Companies House has also announced that the government is looking at solutions for the impact of COVID-19 on companies’ ability to hold Annual General Meetings. Updated guidance on this matter is expected to be published in due course.
Get in touch
For further advice on contingency planning please refer to the contact details of the lawyers in the relevant practice group or the partner with whom you normally deal.