The monthly round-up from the Anthony Collins Solicitors charities team.
The contract in question is the NHF (National Housing Federation) Schedule of Rates Form of Contract 2011, which we, at Anthony Collins Solicitors, comprehensively revised and updated for Rand/M3 in 2011, and still keep up-to-date for them.
The court case was a decision of the Court of Appeal in Sutton Housing Partnership Limited v Rydon Maintenance Limited  EWCA 359.
I was pleased to see that the contract passed scrutiny with flying colours, even though Sutton had substituted their own KPI (Key Performance Indicator) Framework for the KPI Framework document provided with the template contract. Had Sutton used the version from the template contract, both the MAP (Minimum Acceptable Performance) levels and worked examples would have been clearly set out in the KPI Framework document. Instead, in the KPI framework drafted by Sutton, the MAP levels were expressed as “examples”, leading to a concern whether those MAP levels were contractual requirements.
In the case, the court decided that unless the “example” figures were treated as being the contractual MAP levels, the contractual provisions dealing with termination for failure to achieve those MAP levels would have been redundant. As the court had established that the MAP levels were contractual requirements, they upheld Sutton’s right to terminate the contract (following a notice period to give Rydon an opportunity to improve performance) as a result of Rydon’s failure to achieve those MAP levels.
Although this was a victory for Sutton, they won’t be able to recover the full costs of the court proceedings from Rydon, and will be out of pocket as a result. Sutton initially lost in the High Court and, therefore, had to appeal to the Court of Appeal. Had the MAP levels been clearly expressed, as set out in the template KPI Framework provided with the NHF Schedule of Rates Form of Contract 2011, it is very unlikely that Rydon would have even gone to court, let alone have won in the High Court.
This case demonstrates that when you are amending template contracts and replacing documents within them, those bespoke documents and amendments need to cover everything clearly in the template documents they are being drafted to replace.
Rather than substituting whole documents, it is usually better and safer to keep the documents provided as part of the template contract, and add into them any bespoke amendments (such as to add financial incentivisation, as Sutton wished to do) rather than replacing them altogether.
In this ebriefing, we identify what we see as the key messages arising from recent prosecutions in the care and housing sectors.
A recent High Court case on costs could prove essential reading for clients who have cases in the magistrates' courts.
The employment and pensions team offer practical advice on whistleblowing.
Partners, David Alcock and Sarah Patrice, have been involved in reviewing the new Code of Governance for community-led housing, published on 21 May 2021 by the Confederation for Coop Housing.
Following the eviction ban being lifted on 31 May 2021 and further to our previous ebriefing, the new notice of seeking possession forms are now available on the Government website as Word versions.
The European Court of Justice's standpoint on the Wiener Wohnen landowning developer case, and how the level of influence over the work did not amount to a decisive influence.
The Law Commission's Technical Issues in Charity Law report revealed that many charities struggle with a range of technical issue in the law.
The Law Commission recommended four key changes to the law in respect of mergers and the incorporation of charities which we have detailed in this ebriefing.
Over the last few weeks, we have published individual ebriefings on some of the key changes to be implemented following the Government’s response to the Law Commission’s report.
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