Oxley and CowardEmma Degenhart, Author at Oxley and Coward

Family law and the divorce process

A toolkit for family breakdown in the lockdown

By Sarah Scott, Family law expert with Oxley & Coward Solicitors LLP

The coronavirus crisis is redefining lifestyles and the boundaries of our interactions; a situation that can challenge even the strongest bonds. For couples who are struggling in their relationship, or trying to manage co-parenting, anxiety levels are likely to be heightened if it seems there is nowhere to turn, while personal movements are restricted and even the family courts are working remotely.

For me, and my colleagues across the country, being a family lawyer means being there for all the challenges, not just the day in court, and at this time we know it is more important than ever that we are available to advise, encourage and support. It is likely to involve new ways of working when face-to-face consultations are out of the question, and private telephone calls may be impossible, but even though law firm offices are closed, everyone is working to keep the doors open to support families through the crisis.

In China, which was first into lockdown following discovery of the virus, there have been reports of a huge surge in divorce petitions as couples emerge from the country’s stringent restrictions, with one city official in Hunan province quoted as saying that what may have seemed trivial in normal life had escalated for many couples struggling to deal with the exceptional circumstances. And a divorce lawyer in Shanghai reported a four-fold increase in caseload while commenting that incompatibility had replaced infidelity as the primary reason for seeking divorce. ^Bloomberg

For those in the UK who were considering or had already started the process of divorce, many will still be living together, adding to the pressure of the current lockdown. For those struggling under the relentless strain of being in each other’s company 24/7, it will be hard to find a way to release the pressure to see clearly whether the relationship has run its course, such as through couples counselling or simply taking a break from each other.

And while no-fault divorce is likely to become law once the legislation resumes its progress through Parliament, for now couples must continue to deal with one party being ‘blamed’ for the breakup or wait for the change in the law.

Grounds for divorce under the existing Matrimonial Causes Act 1973 require one party to prove their partner is at fault through adultery, desertion or unreasonable behaviour. Alternatively, and only if both sides agree, they can part after two years of separation. If no fault is given, and one party does not consent to the divorce, then the period of separation is extended to living apart for five years.

For those who feel compelled to act now, or as soon as we come out of lockdown, it is likely that we will see unreasonable behaviour cited as the most common ground for such divorces. Most recent statistics for opposite sex couples show 36.8% of all husbands and 51.9% of all wives petitioning for divorce on this ground.

But petitioning is only the start of what may be a long journey, with the process of divorce, negotiating over finances and family arrangements, becoming ever more complex. That’s in part because there is more at stake, particularly for middle-aged couples, when couples come to hammer out a fair division after a marriage breakdown. Wealth statistics from ONS show that by 2014 half of all households had total wealth of £225,100 or more.

The Children and Families Act 2014 requires a separating couple to consider using mediation before they can ask a court to sort things out for them, so it’s best to approach things with an open attitude. I always encourage couples to talk to each other, to try and reach agreement and face up to finances from the outset. This has become even more important in the current situation, if stand-offs are to be avoided.

Here are some things to think about, depending on the stage you may be at:

Deciding whether your relationship has run its course:

If you’re going through a bad patch, you may have decided that you must try and reconcile your differences, or else wait until the lockdown ends, before trying to separate. Assuming there is no issue over personal safety, the decision is likely to be dictated by financial circumstances. Funding two homes is daunting when job security is under threat and investments have crashed, and that’s before considering how to identify and move into alternative accommodation under lockdown, even to sofa-surf with a friend.

If the result is that you are going to try and live apart while still in the same house, in anticipation of separation later, it’s worth approaching it in a structured way, and tackling the bigger issues, such as agreeing who gets which rooms or areas, how you will share the household expenses and how you will present the situation to any children living with you.

It is a good idea to put such arrangements in writing. You can do this yourselves, or with a professional adviser or mediator, and involving them at an early stage can help avoid the obvious pitfalls, while also giving you some moral support. Such guidance becomes vital where the decision is taken to start divorce proceedings, when legal and financial advice is important from the very beginning.

In terms of administration, the courts have confirmed that online applications will continue, with the divorce petition processed from application through decree nisi to decree absolute without any need for face-to-face contact.

Similarly, applications for orders relating to children can be made online, although this is currently restricted to certain postcode areas. In other areas the forms will need to be downloaded and posted to the local court.

Progressing divorce:

The current financial uncertainty is making decision-making difficult, whether for those embarking on divorce or for those who have already made commitments. Any financial arrangements made in usual circumstances will have a degree of flex built in, but we are presently in extraordinary times, where both assets and job security will be uncertain.

The starting point for any settlement is to look at assets in the marriage, with shared financial information for bank accounts, investments and other assets. For those who are part of the way through the process, such figures may have been collected some time ago and already form the basis for a settlement figure. The impact of the coronavirus on all aspects of the economy, the stock market and the likely downturn in the property market, make it essential that these are reviewed in the context of any settlement negotiations.

If a court date has already been set, the hearing will be held remotely, and all first hearings in financial cases will be conducted by email. Where cases are complex, the court is expected to use video links for hearings, although in-person hearings may still be held subject to individual circumstances and the demands of the case.

It is usual in any divorce settlement to balance risk with absolute value and the professionals will work to ensure no individual ends up with all the riskier or illiquid assets, but there may be those who have already reached a settlement which no longer seems fair. It is important to get guidance as soon as possible, as speed of action is one of the factors considered by the courts, although there is no guarantee that orders may be amended, even in these exceptional circumstances. The capital elements of any settlement will be amended only where an unforeseen event invalidates the assumption on which the order was based, and following the 2008 market crash, the Court of Appeal ruled the financial disruption was not an unforeseen event.

Maintenance arrangements:

Unlike the capital element, if you are earning less money during the crisis, or have lost your job, it may be possible to ask the court for a variation on payments under a maintenance order where there has been a material change in circumstances. Going back to court can be a costly procedure and the best starting point would be to see if you can reach agreement between the two of you, while exploring other sources of income and benefits.

It’s worth appreciating that a fall in income may not justify a change in arrangements, as maintenance is needs-based and the needs of both parties and any dependent children will be evaluated.

If you are the one receiving maintenance payments and you lose other sources of income during the current crisis, such as your job, then you can ask for a variation due to changed circumstances but the court will first expect you to take reasonable steps to secure other sources of income, such as applying for relevant Government coronavirus schemes. If it’s likely to be just a temporary situation, then have a conversation and put everything in writing.

Do take advice, whether you are paying or receiving, and avoid getting into a situation where you are in breach of a court order without having tried to resolve the problem.

Co-parenting:

Where parents are living in different households, the Government has clarified the advice on how to approach co-parenting.

Children under 18 whose parents are living apart can move between the homes of their parents, in an exception to the mandatory stay-at-home rule for us all. But this does not mean children should move around without weighing up what is best – such as the health of all concerned, the risk of infection and how and where any handover takes place. If one parent is a key worker, then it may be sensible for the other parent to look after children, to reduce infection risks.

And if, for any reason, a child will not spend their scheduled time with one parent, the courts expect regular contact to be maintained through other means, such as FaceTime or Skype.

Importantly, any variation to current arrangements should be agreed between you, and put in writing wherever possible, whether a letter, email or simply a text exchange. Guidance says that “the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the stay-at-home rules in place at that time, together with any specific evidence relating to the child or family”.

Where there is a disagreement on arrangements, then seek advice. Whether for enforcement or to apply for a change to the contact arrangements, court hearings are continuing, although the default is via phone or video link.

The most important thing for children is that parents avoid conflict. Movie stars Bruce Willis and Demi Moore may have divorced 20 years ago, but they are exemplary co-parents – even sharing lockdown time together with their adult children in California.

In her recent autobiography Moore wrote that it wasn’t easy at first “but we managed to move the heart of our relationship, the heart of what created our family, into something new that gave the girls a loving, supportive environment with both parents. We felt more connected than we did before the divorce.”

That’s a great position to be in, but for those who struggle to emulate such an example while going through a breakdown, it’s important that you do all you can to avoid weaponising disputes and that you keep arguments away from children.

Finally:

China experienced a surge in reported domestic abuse during the lockdown, a factor unfortunately being reflected in the UK according to early reports, so while it may be a very hard call to make, in the current situation it’s more important than ever that you seek support from your professional adviser or the police if abuse is taking place.

For those where there is no physical risk, it’s still important to act if you need help, so don’t sit on it. Reaching out to your adviser and receiving some impartial support may be just enough to keep things on a more even keel while we continue through the lockdown.

If things have gone too far to be resolved, then receiving advice on what is feasible and how to approach conflict could make all the difference. You may not be able to speak on the phone or video conference if you are in lockdown with your partner, but having an email exchange with your adviser, or a live chat on social media like WhatsApp or Messenger, can bridge the gap during the current crisis. Family lawyers will be making themselves available to their clients in whatever way is needed in the current crisis.

Property Law – Landlords must comply with latest energy standards

Landlords must comply with latest energy standards

Landlords of residential property could face high fines if they do not meet the latest energy efficiency standards.

On 1^st April 2020, the latest stage of the Minimum Energy Efficiency Standards was implemented, making it unlawful for landlords to continue domestic residential tenancies where the property has a rating of F or G on its Energy Performance Certificate – commonly known as an EPC.

Two years ago, the first stage of implementation introduced the requirement for an E rating or above for all new tenancies granted. Now, that is extended to all existing domestic tenancies and in 2023 it will be extended to all commercial tenancies.

Where landlords continue to let domestic property which fails to meet a minimum E rating, enforcement action and fines of up to £5,000 could follow. While there has been little enforcement since 2018, that has been attributed to the difficulty of identifying whether property was subject to a ‘new’ or ‘existing’ tenancy, but those in the industry say it is likely that enforcement will be tackled now that all property let under a residential tenancy must comply.

Explained property law expert Dawn Cherry of Oxley & Coward Solicitors LLP in Rotherham: “All domestic landlords need to check their property portfolios and undertake any work that is needed to increase the EPC rating or to register an exemption. There is some funding support available for landlords, and a cap on how much has to be spent, so it’s worth checking out the government’s information and guidance on how to meet the regulations.”

Exemptions may be provided where a landlord has undertaken measures recommended in the EPC report up to a cap of £3,500 including VAT but the property still does not meet the E rating. Another route to exemption is where any recommended upgrade option would exceed £3,500. Any exemption will last for five years after which the property must once more be upgraded.

“Properties listed for historic purposes are generally thought to be exempt, although it’s not entirely clear from the EU Regulations and the Government’s guidance. These say that energy performance compliance may not be required if the necessary works would unacceptably alter the character or appearance of a building, but do not provide an automatic exemption. Owners are well advised to get an EPC and then ask their local conservation officer to confirm where they stand if the property does not meet the new requirements.”

The Regulations also allow the tenant to undertake energy improvements if the landlord gives their consent, even where there are restrictions on making improvements in the lease. If the tenant applies for consent the landlord may only refuse on reasonable grounds.

COVID -19

Following recent developments and updates to UK Government guidance, we took the decision to close our office to the public on 24^th March 2020. This decision was taken to ensure the health and safety of both our staff and clients, and in line with our business continuity plans. A number of staff members are working remotely and can be contacted via email and telephone, details of which can be found on our “Contact Us” page.

We continue to keep under review the advice issued by the Government , and work within the guidelines set out. We remain committed to providing a high standard of service and aim to do so with as little disruption as possible for our clients. We appreciate your understanding during these unprecedented times and will provide updates as they become available.

COVID-19

Our doors have been open since 1791. At present we continue to keep our doors open whilst closely following UK Government guidelines, and have taken the decision to restrict face to face meetings in order to protect both clients and staff and limit the risk of infection. We would ask that only clients who have a pre-booked face to face meeting come into our office, and would like to reassure all visitors that additional measures have been put in place with regards to health and hygiene based on the guidance issued by Public Health England. If you require an appointment please call before attending and an appointment will be offered if possible.

In line with Government advice about home-working, some of our staff are working remotely and therefore may only be able to speak by telephone however we remain committed to providing a high standard of service to all our clients.

Our intention is, as far as possible, to maintain business continuity and we do have appropriate continuity plans in place to minimise any risks and disruption to service. We will of course keep the situation under review as it progresses and update clients as appropriate.

Sunak splashes the cash in post-Brexit budget

New chancellor promises to support individuals and business as country tackles coronavirus threat

Business rate cuts, cash grants for small enterprises and support for both employees and employers on sick pay were among the emergency announcements designed to tackle the impact of the coronavirus in Chancellor Rishi Sunak’s first Budget, presented to parliament just four weeks after his unexpected promotion to the role.

The statement included a range of other headline-grabbing figures as he outlined a post-austerity spending plan that included big budgets for everything from the NHS and housing to research & development. There was funding for flood defences and road infrastructure, including a hefty pot of cash to spend on tarmac, enough to fill 50 million potholes in roads according to the Chancellor.

In a Budget designed to secure economic stability in the face of the huge uncertainty surrounding the coronavirus, and following a Bank of England reduction in the base rate earlier in the day, the Chancellor’s plan is expected to increase borrowing by £3.1 billion on average from 2020-21 onwards.

Plans include an increase to the threshold before National Insurance contributions are deducted, to £9500 from next month and the promise of the living wage rising to £10.50 per hour by 2024.

Also confirmed was a set of measures to cushion the impact of coronavirus on business, with retail, leisure and hospitality companies occupying premises with a rateable value of less than £51,000 receiving a rates holiday for the coming year.

Growth forecasts, made before the virus hit, stand at 1.1% in 2020, then 1.8%, 1.5%, then 1.3% and 1.4% in the following years, all down from last year except for 2021.

As predicted, there was a reduction in the lifetime allowance on gains eligible for Entrepreneurs’ Relief which provides a reduced 10% rate of Capital Gains Tax on qualifying disposals. From today (11 March 2020) the lifetime limit will be reduced from £10 million to £1 million per person.

Another widely expected income-generating measure was the Chancellor’s announcement of a 2% surcharge in Stamp Duty Land Tax (SDLT) for non-resident purchasers of property, a move that will hit UK expats living and working overseas as well as foreign investors.

Many of the imminent tax changes were announced in previous Budget statements, including those affecting Capital Gains Tax on property disposals, which has seen incremental changes to lettings relief and final period exemptions for those who sell homes that are not fully eligible for Private Residence Relief. This affects anyone completing a property sale after 5^th April this year for any property which has at some time been their principal private residence.

Another is the final stage of the incremental introduction of changes to landlords with buy-to-let mortgages. From April 2020, landlords who own rental properties in their own names will no longer be able to deduct any mortgage interest or other finance-related costs from their rental income before calculating their tax liability, a process which previously benefited higher rate taxpayers. The tax relief has now been replaced by a 20% tax credit for finance-related costs.

Said Amy Cusworth, Commercial Law Solicitor at Oxley & Coward Solicitors LLP : “This was a Budget designed to please those who gave the government its resounding majority, by following through on election promises, while putting the threat of the coronavirus centre stage.

“There were some surprises – for example, we had anticipated an announcement around inheritance tax following the consultation that has been taking place, but that didn’t happen. This, together with the shift in entrepreneurs’ relief and capital gains taxation on property make forward planning an ongoing priority. It’s not just something for the wealthy and both homeowners and business owners need to do efficient tax planning if they wish to protect their pension or inheritance for the next generation.

They added: “Anyone planning to sell their business in the next few years should certainly be working with their advisers to look at ways of extracting value prior to sale, for example through increased employer pension provision.

“For individuals, long term planning for asset transfer may be on the agenda or considering whether using trusts could be helpful.”

Mum and Dad need to get with it

Parents who help their children get on the property ladder are being urged to adopt a more professional approach when it comes to handing over the cash.

Faced with high rental costs and soaring property prices, more parents are dipping into savings or releasing capital from their own property to support the next generation. Research by Legal & General estimates that a massive £6.3bn was provided last year by the Bank of Mum and Dad – or BoMaD – as it’s known. The figure effectively makes BoMaD the 11th largest mortgage lender in the UK, based on rankings compiled by UK Finance, the collective voice for the banking and finance industry.

When the money was handed over, 59% received it as a gift with no requirement to pay it back, and 14% received a mix of gift and loan. Only 6% were charged interest and only 8% of those doing the lending wanted an equity stake in return for their contribution.

But with the average contribution of families and friends now standing at a massive £24,100 – and £31,000 in London – it can prove a minefield if it’s not clear whether it’s a gift or a loan, covered by an agreement in writing. And while parents may be happy to support their own children, if the contribution ends up with someone outside the family, it’s likely to cause additional problems when there are considerable sums involved.

That situation was played out in the Court of Appeal recently, when a mother tried to secure the return of the contribution she had made to her son’s property purchase, after he died leaving everything to his wife. In Farrell v Burden, Mrs Farrell loaned her son £170,000 in 2005, and he repaid £90,000 later that same year, but with no further capital sums or interest paid after that. When he died 11 years later, leaving nothing to his mother, she took action to recover the outstanding amount she said was due from his estate.

But his widow, Ms Burden, claimed that the money had been given to the couple and in the absence of any documentation, the court said the payment was a gift in the eyes of the law. Mrs Farrell was ordered to pay the costs of the estate in the action, reportedly around £100,000, as well as losing her claim for the money. While she appealed the case, when it reached the Court of Appeal, they upheld the judgement on the grounds of lack of evidence, as she had not asked her son or his wife to sign anything that would support her claim.

Explained property legal expert Miss Dawn Cherry of Oxley & Coward Solicitors LLP: “We are seeing more parents stepping in where they can afford to support their children in buying a property, but that is giving rise to problems along the line, with more challenges to estates or worries over divorce settlements, when the terms may have been discussed, but not clearly set out in writing. While the cost of preparing such agreements may seem unnecessary in the happy situation of handing over the cheque to help children onto the property ladder, the potential costs of litigation further down the line can be considerably more than the original loan – as happened with Mrs Farrell.”

When parents contribute money to the purchase of a property by a child and partner there are several scenarios: the payment might be a gift to the child, it might be a gift to the child and partner; it might be a loan to the child or a loan to the child and partner; or it may be that the parents intend to be entitled to a share in the property. Whether to avoid later disputes, or simply to resolve any unclear thinking at the time, makes it vital to have a written record of what was intended.

Such documentation is not just important for setting out a loan to ensure money is repaid, it is equally important in setting out where it has been made as a gift. For inheritance tax planning purposes, documentation to support when the money was paid and confirming that it was made with the intention of being a gift may be crucial, if it is to take advantage of the rules concerning such gifts when inheritance tax is calculated on the death of the giver.

“The sums involved, and the complexity of property purchases, make it essential to get the right advice. None of the Top Ten mortgage lenders would hand over the cash without having their interests properly protected and the BoMaD need to take the same approach,” added Dawn.

Time to talk about workplace mental wellbeing

Time to Talk Day on Thursday 6th February 2020 is an opportunity for employers to review policy and culture against best practice in employee mental wellbeing

Workplace mental wellbeing is a top concern among employers, according to European-wide research[1].

According to the World Health Organization, lost productivity due to mental illness costs Europe US$140 billion per year. In the UK, workplace mental illness is estimated to cost 2% of GDP and the latest statistics from the Health & Safety Executive (HSE) show that work-related stress, depression or anxiety now represents 44% of all work-related ill health and 54% of working days lost – a total of 12.8 million days in 2018/19.

The continuing rise in such figures highlights the need for companies to increase their focus on mental health to ensure employee wellbeing and avoid complaints or litigation from staff. One of the initiatives designed to encourage such dialogue is Time to Talk Day, which takes place on 6^th February this year.

Workload pressures, tight deadlines, too much responsibility, and a lack of managerial support were the main reasons given as the cause of workplace stress in the HSE findings. Employers have a legal duty to protect employees from stress at work by undertaking a risk assessment and acting on it.

And where an employee is suffering from a mental health condition which has a long-term effect on day to day activity, this may be classed as a disability, requiring the employer to take positive action under the Equality Act 2010. The Equality Act makes it unlawful for an employer to treat a disabled person less favourably because of their disability, without a justifiable reason.

Severe depression or anxiety is not enough on its own to meet the definition of ‘disability’ under the Equality Act, unless it has a substantial, long-term impact on an individual’s abilities. But, whatever the extent of an individual’s mental health issues, there is a responsibility on the employer to provide responsible support and protection from unfair or discriminatory treatment.

In extreme situations, mental health may result in work-related suicide attempts. Men working in construction are shown to have an increased risk and union officials have said the Hinkley Point nuclear power station project is grappling with a mental health crisis. According to the Unite union there were 10 suicide attempts in the first four months of 2019, as well as a rise in the number of people off sick with stress, anxiety and depression, and an increase in workers suffering from mental distress.

Explained Amy Cusworth law expert of Oxley & Coward Solicitors LLP: “Such reports are a tragic reflection of the long-term impact that stress in the workplace may have on workers. Fortunately, this situation is not common, but demonstrates why it is so important for organisations to face up to the challenge of employee wellbeing. Employees need to feel supported and not worried about what will happen if they speak up. That comes down to having the right culture in the organisation.”

She added: “A good starting point is to review processes and practice to see whether they provide support and protection from unfair or discriminatory treatment. If there are gaps, then make sure they are closed. In the same way that employees with physical issues need to be supported to fulfil their role, by seeking out reasonable adjustments to support them, the same applies for anyone with mental health issues”

Workplace resources for Time to Talk Day

[1] Littler’s 2019 European Employer Survey Report

Talking and teamwork to tackle Christmas break-ups

Divorce rates have fallen to their lowest level since the 1970s but breakdowns continue to spike after the festive season, and professionals are encouraging couples with rocky relationships to focus on talking to each other in the run up to Christmas.

Many attribute the stress and financial burden of trying to create the perfect Christmas as the reason why many married couples head for divorce in January, with family lawyers and support organisations receiving more enquiries in the New Year than at any other time.

And while the latest figures from the Office for National Statistics (ONS) show that overall rates of divorce have reduced, experts say this does not directly translate into more couples experiencing a ‘happy ever after’.

There were 90,871 divorces of opposite-sex couples in 2018, a decrease of 10.6% compared with 2017 and the lowest number since 1971. Couples are also staying married for longer before they divorce – 12.4 years for those divorcing in 2018, up from 9.6 years in 1996. But analysts suggest that these figures are due in the main to marriages taking place later in life and often following a period of living together, which can act as a pre-marriage trial. The figures also reflect that there are far fewer marriages taking place overall, at nearly half the number of 1974.

Administrative delays at Ministry of Justice divorce centres have driven last year’s figures down as well, with the subsequent catch up on processing of divorce petitions expected to translate into a higher number of completed divorces in 2019.

Unreasonable behaviour remains the most common reason for divorce. In opposite-sex couples, 51.9% of wives and 36.8% of husbands petitioned on this ground.

At present, the only grounds for divorce are that the marriage has broken down irretrievably, through adultery, unreasonable behaviour, the rarely-used ground of desertion, two years of separation where both parties agree to divorce, or five years’ separation in which case the consent of the other party is not required.

Said family law expert Sarah Scott of Oxley & Coward Solicitors. “There has been much discussion about changing the law to allow for no-fault divorce, without the need for a long separation, but we are still waiting. In the meantime, we need to support couples in navigating the process and help them avoid a recriminatory approach, which is even more important when children are involved.”

This echoes guidance from support organisations such as the NSPCC who encourage parents to talk to their children and prepare the ground for separation and divorce, by avoiding accusations and blaming or asking children to take sides.

She added: “Talking things through is always best, and you don’t have to do it all on your own, as someone can sit in to help focus those conversations on positive negotiation, whether it’s just between the two of you, or as a family with your children.

“It doesn’t have to be a professional at this stage, although it’s a good idea to get some expert input before you make any agreement over asset sharing or custody arrangements, to be sure it is fair for both sides.

“Approaching separation on the basis of collaboration and mediation may ease things and make this very difficult phase of life just a little less tough. When a marriage is failing, positive communication between parents is perhaps the best Christmas present the children can be given.”

The new Tenant Fees Act

On 1^st June this year, a new act came into force that has a profound effect on the rental market. It’s relevant not just for landlords and tenants, but for agencies that, to date, have made a very nice little living out of charging tenancy fees and administration costs for rentals. These fees have affected both tenants and landlords, who have had to fork out hundreds if not thousands of pounds in fees and agency costs.

Now, under the Tenant Fees Act 2019, all tenant payments are banned by default unless the Act specifically makes allowances for them. So tenants and landlords won’t have to pay fees for gathering references or taking inventories, for example. The Act also limits the amount asked for as a deposit to a maximum of five week’s rental value, and limits holding deposits to one week’s rent.

What’s listed in the new Act?

The new Act basically puts a cap on tenants being charged anything other than the rent, the tenancy deposit, and where applicable, a holding deposit. However, there are certain fees that are still included, and they kick in if the tenancy agreement is broken.

Two out of the three applicable fees are classed as ‘default’ fees (the third is applicable for contract amendments). Landlords will need to include notification of these fees into tenancy agreements. They are:

Lost keys – a minor infringement, but one that is still included in the Act. You’re probably looking at a fiver at most, for a new key.
Changes to Tenancy – landlords can now charge up to £50 for changes in the terms of tenancies, such as allowing pets or adding a new tenant to the agreement. It doesn’t apply to tenancy renewals or any changes to the length of an agreement.
Late Rent Fees – this is the major change covered by the Act. Landlords now have the right to charge a fee for rent payments that are two weeks or more overdue. These fees can be up to 3% of the rental amount, plus the Bank of England base interest rate, charged on a pro-rata basis. This brings tenancy agreements into line with other contracts, such as invoices for goods, where the ability to charge interest on overdue payments has been a long-established legal right.

Landlords do not have the right to charge for letters or phone calls involved in chasing or collecting outstanding rent, and because the amounts are relatively small, they probably won’t act as any kind of a deterrent or incentive to a tenant that is already in arrears.

This new legislation doesn’t really have much of an impact on tenants who default on their rent, it merely tots up the amount they already owe to the landlord by a few extra pounds a week. Realistically, if the tenant has already defaulted on the rent then it’s highly unlikely they’ll be able to pay the fees as well. In that situation, the landlord has the standard Section 8 notice to fall back on.

What is a Section 8?

There are two different types of eviction notice, a section 21 and a section 8. The notice is a standardised letter that can be downloaded from the government’s website GOV.UK. It’s absolutely vital that the letter of the law is followed exactly when evicting tenants, otherwise they may have a case to challenge the eviction on a technicality and you could end up with a situation where a tenant remains entrenched in a property for months without paying any rent at all, while the eviction notice goes back and forth in the courts. This also starts to pile on the legal fees, making the whole process incredibly costly.

A Section 21 can only be served if the tenant has had all the legally-required documentation including EPCs, gas safety certificates, and any HMO licences. Be aware that if you serve a Section 21 shortly after a tenant has put in a request for repairs to be carried out then it could be regarded as a ‘retaliatory’ eviction and easily challenged by the tenant in court. You cannot serve a Section 21 within the first four months of a tenancy, and you have to give your tenant two months’ notice to quit the property.

A Section 8 eviction notice also requires a certain notice period, but there is a wide range of grounds that can justify a Section 8 being served, including rent arrears. If a tenant is up to two months in arrears then a Section 8 notice can be served. It’s also possible to serve a Section 8 notice if a tenant is consistently late or in arrears, even if the rent has been paid up to date at the point of the notice being served.

The current legislation makes it fairer and more affordable for tenants to take up a rental property, while the continuation of the existing legislation around Section 21 and Section 8 notices also gives landlords a degree of certainty when it comes to getting their property back from tenants who are in arrears.

If you’re concerned about your rental agreement, talk to a solicitor specialising in property law.

Back to school – what’s the law on uniform policies?

As Wath Academy makes the news this week about their crack down on uniform policy, what’s the law on this?

The majority of schools in the UK have some form of dress code or uniform, and most are pretty strict about enforcing compliance from pupils, whether it’s a school tie or a top-to-toe uniform with strict rules on everything from the type of shoes worn to caps, personal jewellery, and hairstyles. Some of these rules and regulations can be quite draconian, but do parents and children have the right to challenge the school if they disagree with the uniform rules?

Some schools can come down harder than others. For example, last year the Royal Wootton Bassett Academy in Wiltshire gave over 100 pupils periods of detention on their very first day back at school. Some were penalised for wearing the wrong trousers (no Wallace and Gromit jokes, please…) while others were hauled over the coals for simply having the wrong coloured socks on. This seems pretty extreme in anyone’s book, and parents were furious that some children were left stranded and had difficulty getting home because of the detentions handed out.[1]
At the same time, 80 pupils in Birmingham were put in isolation for the heinous crime of wearing the wrong trousers (again, this seems to be a bit of a theme with some schools), while others have faced penalties for the wrong style of shirt or shoes.
What’s the law?

Every school is perfectly entitled to set their own set of rules and regulations concerning uniforms and dress code and can discipline any children who do not stick to those rules. However, legally it’s a bit of a grey area, and schools are required to consider any reasonable requests to alter the uniform policy, especially if it could be regarded as discrimination. So, for example, if a Muslim girl were to be asked to remove her headscarf or a Rastafarian is asked to cut their dreadlocks then this could be challenged as being discriminatory.[2]
Legal experts are adamant that any punishment a school hands out for uniform or dress code breaches should be in line with a published behaviour or uniform policy. So, put simply, the school can’t simply start dishing out punishments for uniform infringements if their published behaviour or uniform guidelines don’t specify what constitutes a breach, and what the resulting punishment will be.

A headteacher is within their rights to ask a pupil to return home to rectify the infringement, but again the school needs to consider if this action is appropriate, depending on a number of factors such as the child’s age, their vulnerability, and just how easy it really is to ‘pop home and change’.
Any exclusion on the grounds of uniform infringements is classed as an authorised absence. However, long-term absences because of any challenge to a uniform policy moves both pupil and their parents and the school into choppy water. Does a uniform infringement really qualify as a ‘serious breach’ (the only real justification for long-term exclusion)?
What are the parents’ rights?

Parents have the right to request variations to an established uniform policy, and the school is duty-bound to consider them. This is particularly true if the request is as a result of a need to accommodate a child’s religious beliefs, ethnicity and cultural reasons, or disability. All disputes should go through the school’s individual complaints policy, and there should be a reasonable amount of flexibility on both sides.

If, after going through the process all the way up to the Chair of Governors, the parent and child still feel that their requests are not being dealt with appropriately, then the matter can be raised with the Department for Education. However, it’s worth noting that they are very reluctant to become involved with minor infringements and will only take action when a complaint has real merit.

If you feel that your child is being victimised because of a failure to comply to the school’s uniform guidelines, or if you’re a school headteacher facing a challenge from parents over your uniform policy then it’s worth talking to a legal expert who specialises in workplace mediation to find out what to do next.

When can you let your kids fend for themselves?

If you’re a parent, you’ll be familiar with how long it takes to get your children ready to leave the house. Whether it’s setting up the pram for the baby, filling your bag with all the supplies you need or finding lost shoes, it can be a real pain to do anything quickly, especially if you have an appointment to get to, or shopping to buy. If only you could safely leave your child on their own and get those daily tasks done quickly. But where does the law stand with this?

Surprisingly, there are no specific laws in the UK governing when you are able to leave a child alone at home or in a car unsupervised. However, according to The Children and Young Persons Act 1993 and several other laws, it is a criminal offence if leaving them alone puts them at risk of harm, whether that is through an injury or poor health.

Personal judgement

Children mature at different times. One child may mature young and feel confident enough to be left alone and be happy for hours, whereas another may feel panicked at the prospect of even 10 minutes. When children panic, they can make dangerous decisions such as leaving the house or car to seek help, putting them in an unpredictable situation and possibly into unsafe public places.

Ultimately, it is down to the personal judgement of the parent or guardian as to what they deem to be appropriate and take adequate action to avoid the risk of any harm.

Helpful guidelines

The NSPCC (National Society for the Prevention of Cruelty to Children) state the following guidelines:

If your child is under 12, they should not be left alone for prolonged periods of time. This is because they are rarely mature enough to handle this situation at such a young age.
Children under 16 can be left at home alone but should not be left by themselves overnight.
Babies, toddlers and young children should never be left alone, even for short periods.

A few questions to ask yourself

Every child is different, so to make things easier for yourself, ask yourself the following questions:

Is this my only option? Is there a neighbour, friend, family member or facility that could help me?
Has my child ever been left alone before? If so, how did they react?
How long will I be leaving my child?
What would they do in case of emergency (fire, burglary, etc.)?
Do they have sufficient skills to keep themselves out of danger? Think about cooking, electrics, heavy objects, etc.

Think about the answers to these questions. Houses and cars are full of potentially harmful items, and children can get themselves into all sorts of trouble very quickly.

Other options

If you work:

Some companies give their employees childcare vouchers as a benefit, so it may be worth checking with your Human Resources department to see if this option is available to you.

While it’s still a new concept that is generally only offered by much larger companies, ‘in-house’ childcare is starting to gain popularity. It is becoming more commonplace for businesses to offer a creche facility or allow employees to bring children to work when they need to.

If you study:

Many colleges and universities offer options for parents to help them with childcare. Speak to student advisors and well-being counsellors to explore your options and see what is available.

Additionally, many schools offer extra childcare facilities such as breakfast clubs in the morning, stay and play or homework clubs in the evenings, and ranges of schemes over the summer and other school holidays.

Of course, nobody else knows your child’s maturity level better than you. It’s safe to say that if you have a baby or young child, you should never even consider leaving them alone.

If you regularly have to leave your child alone, or you are just not sure about how these rules apply to your situation, consult a family lawyer for further advice.

Contested probate – how and why wills can be contested

Distributing the estate of a deceased person is a challenge that often results in legal wrangles between family and friends, especially if they feel that they haven’t been included in the will or have been ‘short changed’ in some way. This can lead to family arguments and even a challenge to the will itself. But under what conditions can a will be challenged and how do you go about doing so? Here, we take a brief look at situations where a will might be challenged.

Five principal justifications for challenging a will

Invalid will

To be valid, a will must be written and then signed in the presence of two witnesses, neither of whom can be beneficiaries of the will. If there is evidence to suggest that any of these conditions have not been met, it will be possible to contest the will.

Lack of capacity

A will can only be legitimately made by an individual who understands the significance of the act and the consequences to their estate of doing so. This means they understand how the estate will be broken up and who will benefit after they have died. It ensures that a will was made by an individual who was in a competent mental state, and if there is any doubt over that fact, it can be challenged.

In recent years, it has become one of the most common justifications for contesting a will, largely due to the increasing number of dementia diagnoses among the elderly.

Undue influence

Undue influence may rise when someone has put pressure on the person writing the will to include clauses or bequests that they would not have included if they were writing the will free of any outside influence. As well as being mentally competent, the will-maker needs to make decisions by themselves and without any coercion. If someone else – whether they are a beneficiary of the will or not – tries to pressurise the will-maker to change the contents of a will, it can be justifiably challenged.

Financial maintenance

This is probably the biggest single factor for wills being challenged. If an individual was financially dependent on the deceased when they died (for example, a child or spouse) then it may be possible for them to challenge the will if they think that the will doesn’t make ‘adequate provision’ for them. To do so they must meet the following two conditions:

The claim must be made within six months of the Grant of Probate being issued
The claimant must meet the criteria for a claimant: this includes a spouse or civil partner, a former spouse or civil partner who has not remarried, a co-habitant who had lived in the deceased’s house for two years prior to their death, offspring, and any other individual who was financially maintained by the deceased before their death.

Fraudulent wills

A will can be challenged because of doubts over the legitimacy of the will or a signature. If the will itself or a signature may have been forged, it is open to the challenge.

How to challenge a will

Typically, the most important factor in challenging a will is time. The earlier you are able to begin the process, the better. From the outset, our advice is to get help from a legal expert who specialises in contested wills as quickly as possible. This is such a complicated and difficult field that it’s almost impossible to make any headway without that all-important legal help. If you feel you have legitimate grounds to challenge a will, whether that’s financial reasons, or there’s doubt that the person made the will with the full understanding of what they were doing, then the first thing your solicitor will do is to request a copy of the will from the executor.

Once that happens, a letter of claim can be filed contesting the will, which will need to detail the reasons why the person is challenging the will in the first place. This is usually for any one of the reasons listed above, although one of the most common reasons is that a dependent such as a child or direct relative feels that the will does not make ‘reasonable provision’ for a spouse or children.

Even if the claim goes to court there is no guarantee that the court will overturn the bequests laid out in the original will. If they find that the will makes adequate provision for a spouse or child, and that the person was in their right mind when they made the will and was not subject to any coercion, then the original will stands.

Conclusion

Contesting a will can be a long and complex process that requires a great deal of expertise and experience. Due to the extremely personal nature of the events surrounding inheritance, it’s a process that’s typically both emotionally charged and difficult to approach with the required impartiality. For this reason, we recommend employing the assistance of legal professionals who specialise in wills and in particular contested probate.

A quick guide to making a will

Though it may be tempting to delay making a will until a later date, it’s essential if you want to ensure your estate is distributed among your beneficiaries without complications. Here, we take a look at the six basic steps involved in making a will and why it’s a good idea to seek professional legal assistance when doing so.

The contents of your will

The first step in creating a will is to have your estate valued and to determine what assets you have to distribute among family and friends. This will involve looking at both your assets and debts to ensure that you have a comprehensive understanding of what you have to leave to your beneficiaries.

The distribution of those contents

Having established what assets, including personal belongings, you have to pass on to inheritors, you next need to determine how these assets will be distributed. Most people writing their will have a relatively clear idea of how they want to divide their estate and to whom certain assets will go.

Choosing an executor

The executor of a will is the individual who ensures that the terms of the will are carried out precisely and in accordance with your written wishes. The executor should be someone who is willing to assume the role upon your death and that will carry out the role in an impartial manner. They can be family members, a close friend, or a legal representative.

Your children and your will

If you have children who are still relatively young, there are a number of considerations you may want to make when writing your will. First, it may be necessary to appoint a guardian for your children. The guardian would be responsible for their care should something happen to both parents. This includes provisions for step- and adopted children and how best to make provision for disabled children, immediately and in the long-term.

Second, if you’re not convinced that your children are of a suitable age to be made fully responsible for their inheritance, it may be a good idea to appoint someone to manage it for them until they reach an agreed age, or set up a trust fund to be accessed by the child at a certain age (usually at age 18 or 21).

Witnessing the will

The final step in writing an official will is having it witnessed. To be valid, all wills must be signed and this process must be witnessed by two individuals. Wills also need to be signed by an individual who is doing so voluntarily, without any coercion from another person, and who is in a sound mental state and understands the consequences of their actions.

Making the most of professional legal advice

Though it is possible to write a will without any professional legal advice, it is not advisable to do so. It may save you a relatively small fee in the short-term, but it could result in a number of long-term problems that could prove costly to those you have chosen to inherit your estate. These include:

A smooth and complication-free probate process. If a will is not checked over by a legal professional, there’s a greater likelihood that problems may occur when it comes to the point when the directions of the will are carried out.

A will that’s been created or checked over by a professional legal advisor offers peace of mind. You can rest assured that it is correctly drafted and valid.

Professional legal advisors will help you make the most of your estate. This is particularly important if the estate is liable to pay inheritance tax or have assets which may complicate matters, such as overseas property.

Will writing can involve some fairly complex legal concepts. For instance, assets left to young children can be protected until they’re of age in a number of different ways, including trusts and gifts. Each of these operates in a different way and has its own advantages and disadvantages. A legal professional will be able to advise you as to which is most appropriate for your specific circumstances.

Some life events such as marriage, divorce and separation which would prompt major changes, will require making a new will. Minor changes to a will can be covered by a codicil (a legally binding amendment).

If you’d like further information concerning will writing, don’t hesitate to get in touch with a legal expert that specialises in Wills and Probate.

The question of surrogacy in the UK

It’s an area of family law that isn’t often discussed in public. Indeed, many people incorrectly think that it’s still illegal in this country. But surrogacy is an accepted practice in England and throughout the UK, as long as it isn’t done for profit. However, in June the Law Commission of England and Wales, along with the Scottish Law Commission announced that surrogacy laws were falling behind the times, were unfit for purpose, and need a complete overhaul. The intention with any review of the surrogacy laws is to ensure every party is fully protected throughout the process, including surrogates, intended parents and, of course, the child itself.

Surrogacy is recognised by the UK Government as a ‘legitimate form of building a family’, but apart from the ‘Thou shalt not make a profit’ clause, the rest of the legislation surrounding this incredibly sensitive and emotional issue is as clear as mud.

The Law Commission, therefore, has proposed legislation to allow the intended parents to become the child’s legal parents at birth, so long as the surrogate is allowed to retain a certain right to object for a short period after giving birth.

Currently, intended parents have to apply to the courts to become the child’s legal parents, and this isn’t granted until they receive a parental order. This process can take months (especially if there is a challenge to the request) and can cause considerable distress to both the intended parents and the surrogate.

Not fit for purpose

The current laws have been described by the Law Commission as ‘not fit for purpose’, and as more families are turning to surrogacy in the UK, it is essential that the legislation is brought into line with modern practices.

The consultation is designed to find out how to move the legislation forward, and ensure that everyone is properly protected, especially the child. The review is sweeping, and also looks at such sensitive topics as egg donation, as well as the wider laws around surrogacy.

The proposal to review the surrogacy laws in the UK has been widely welcomed by family law experts, who wholeheartedly agree that a shake-up in the UK’s somewhat archaic legislation is well overdue. The proposal suggests that the current system should be a ‘pathway’ that aims to give greater certainty to intended parents, and to give the child a greater degree of stability from the moment it’s born. Other proposals include:

The creation of a new Regulator to ensure surrogacy organisations operate within the new pathway system
The removal of the requirement of a genetic link between the intended parents and the child where medically necessary
The creation of a national register so that surrogate children can access information about their origins, in much the same way as adopted children can do genetic searches on their background.

The Law Commission has held onto the fact that surrogacy organisations (those operations that organise surrogacy arrangements) should remain as non-profit operations to prevent any kind of ‘wombs for hire’ industry. While surrogate mothers can be paid a certain amount in ‘reasonable expenses’ at the moment, the law is very vague when it comes to defining exactly what a ‘reasonable amount’ actually is. Part of the consultation process would be to address this murky topic and provide a greater degree of clarity for both intended parents and surrogates as to how much money should change hands.

Bringing up a family is a tough business. Surrogacy adds a whole new level of complication to what is an already-challenging part of everyday life – bringing children into the world. Until the Law Commission’s findings are in, the current 1980s legislation remains in place, and the issue of surrogacy is still very much a background topic in family law. However, with more and more couples choosing surrogacy for whatever reason, it is an issue that has to be addressed to bring the legislation up to date.

If you are considering surrogacy but are unsure of your rights as either an intended parent or a potential surrogate mother, our advice is to talk to a specialist in family law, who can help you navigate your way through this sensitive and emotive issue.

A rocky road to freedom of expression

Two recent tribunal claims highlight the challenge for employers in safely navigating personal expression by employees in the workplace.

A hospital nurse who discussed her Christian views with patients, offering a bible to one and advising another that his survival prospects would be improved if he prayed to God, was fairly dismissed for improper proselytising, a court has ruled. But another, where a quality control manager was asked to keep her sexual orientation under wraps, has seen a compensation award of £8,000 for direct discrimination.

Nurse Sarah Kuteh was responsible for assessing patients about to undergo surgery, part of which involved asking them about their religion, but patients complained that she initiated unwanted religious discussion. When the issue was raised with Mrs Kuteh, she assured management at the Darent Valley Hospital that she would not discuss religion again unless she was directly asked by a patient.

When further incidents followed, she was dismissed on the grounds that she had breached the Nursing and Midwifery Council’s code of conduct. She later issued an unfair dismissal claim, alleging a breach of a European Convention right to freedom of thought, conscience and religion.

When the case of Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818 reached the Court of Appeal, the court recognised the importance of the right to freedom of religion, but said improper proselytising was not covered under Article 9 of the European Convention on Human Rights, which defends the qualified right to practice religion. As a result, the court ruled it was not unfair for the NHS Trust to have dismissed the nurse for proselytising to patients after being asked not to do so.

But in Mrs A McMahon v Redwood TTM Ltd and Mr Darren Pilling: 2405368/2018 the company found itself in hot water for stopping an employee speaking out.

When Ashleigh McMahon joined textile firm Redwood TTM, she disclosed that she was gay to her immediate boss during the first week of her new job, but he told her to avoid mentioning this to anyone else, saying the owner of the company was ‘old school’ and wouldn’t like it.

After being made redundant some months later, she made a number of tribunal claims against her former employer, including unfair dismissal and making a protected disclosure, as well as direct and indirect discrimination. Although the other claims were rejected, the tribunal agreed that the request by her manager amounted to direct discrimination on the grounds of sexual orientation, as the same request would not have been made to one of the company’s heterosexual employees.

Said employment law expert Amy Cusworth of Oxley & Coward Solicitors LLP: “These two cases highlight the need for businesses to keep their recruitment and working practices under constant review, as there is growing pressure to keep pace with both the law and changing attitudes across society. There is no special escape clause for those who are ‘old school’ and everyone must make sure they refresh their mind-set. Employees cannot be treated differently on the basis of their sexual orientation or any other protected characteristic.”

The Equality Act 2010 prevents direct and indirect discrimination based on protected characteristics, which include gender, age, disability, race, sexual orientation, personal relationship status, and religion or belief. The protection of the Act extends to consumers, the workplace, education, public services, private clubs or associations and when buying or renting property.

Questions can be asked about health or disability only in certain circumstances, such as whether someone may need help to take part in an interview, and disability covers both mental or physical impairments and an employer should make ‘reasonable’ adjustments to accommodate disabled applicants and employees.

In addition, the Act makes it unlawful to discriminate, or treat employees unfavourably because of their pregnancy, or because they have given birth recently, are breastfeeding or on maternity leave.

Employees should not be required to share personal information if they are not comfortable doing so, but equally they should not be precluded from discussing aspects of their private life if others who do not share their protected characteristic can freely discuss those aspects.

Employers should have up to date equal opportunities policies detailing their approach to equal opportunities and setting out what is and what is not acceptable.

A rocky road to freedom of expression

Two recent tribunal claims highlight the challenge for employers in safely navigating personal expression by employees in the workplace.

But in Mrs A McMahon v Redwood TTM Ltd and Mr Darren Pilling: 2405368/2018 the company found itself in hot water for stopping an employee speaking out.

Said employment law expert Miss Amy Cusworth of Oxley & Coward Solicitors LLP : “These two cases highlight the need for businesses to keep their recruitment and working practices under constant review, as there is growing pressure to keep pace with both the law and changing attitudes across society. There is no special escape clause for those who are ‘old school’ and everyone must make sure they refresh their mind-set. Employees cannot be treated differently on the basis of their sexual orientation or any other protected characteristic.”

In addition, the Act makes it unlawful to discriminate, or treat employees unfavourably because of their pregnancy, or because they have given birth recently, are breastfeeding or on maternity leave.

Employers should have up to date equal opportunities policies detailing their approach to equal opportunities and setting out what is and what is not acceptable.

It’s all in the planning when it comes to selling privately-owned companies

For the shareholding directors of many privately-owned companies, the end-game is focused on selling up before moving on to new ventures or sometimes retirement. But many owners under-estimate the time involved in making a business market-ready, or do not seek advice on the different options before they start, nor the route-map to follow to secure a successful sale.

Ideally, an advisory team should be put together, involving a lawyer and an accountant specialising in company transactions, to guide the company on the preparation for sale, before any moves are made to seek out buyers. Calling in advisors after a deal has been struck may mean financial or legal pitfalls that can cause a deal to fail in later stages and the role of the advisory team in this preparatory stage is as important as any work they will undertake in finalising the deal. Taking your time to get it right and make the business market-ready means that timescales of 12 to 24 months for preparation are not uncommon.

In putting together a detailed exit plan for a limited company, the first question you are likely to be asked is whether you are looking for a share sale or an asset sale, also known as a business sale. The answer may be influenced by personal, financial or legal reasons which can be explored with the specialists, but the final decision will determine the process to be followed and the resulting tax implications for both buyer and seller.

It’s worth mentioning before exploring this further, that choosing between these two options will apply only for limited companies, where the company is an entity in its own right.

SHARE SALE

The shareholders sell their shares in the company that owns the trade and assets of the business.

A share sale is effectively the clean-break option for the shareholders. The buyer is purchasing the whole company, its assets, liabilities and the business as a going concern. There is no need for new contractual arrangements with employees, suppliers, customers, landlords or others, as the corporate entity that is the company will continue in its present form; it is simply that the shareholding has been transferred.

ASSET SALE

The company sells some or all of the assets which comprise the business.

Here the seller is the company itself, rather than the individual shareholders. Only those assets and liabilities identified and agreed to be transferred are involved in the sale. This can cover both tangible assets, such as property, stock or machinery, and intangible assets, such as intellectual property and goodwill. An asset sale may take place because a seller wants to retain parts of the business that will continue to operate, or be sold elsewhere, or because the buyer wants to cherry-pick and avoid certain company liabilities. As the business is being transferred to a different corporate entity, third-party contracts with customers and suppliers need to be redrawn; commercially-rented property requires negotiation with the landlord to agree an assignment of the lease and there would have to be employee consultation. A Transfer of Undertakings (Protection of Employment) Regulations situation is likely to arise, commonly known as TUPE, where employment rights are protected and transferred to the new owner of the business assets.

A key factor in the decision making between these two routes is the tax position. This is complex and specific to each situation, but generally individual shareholders will be better off in a share sale, with a single tax charge on any capital gains arising, and which is likely to be reduced to 10% if entrepreneurs’ relief applies. In an asset sale, there is a potential double tax charge, firstly on the company, with corporation tax on the profit made on the sale of assets, and then on the shareholders when they withdraw the sale proceeds from the company.

Whichever of these two routes is finally decided upon, the management team need to be sure that contracts and policies are all in order, and that any disputes or other issues have been resolved. Once the company is ready to go on the market, a non-disclosure agreement (NDA) for potential buyers should be in place and confidential information must be withheld from any interested parties until the NDA has been signed.

Once a deal has been agreed, buyers should be credit checked and their source of funds validated. If those pass the test, then set out the terms at an early stage of negotiation. The sale price is important, but it’s not the only thing that matters. Getting a clear document setting out the heads of agreement can influence the way the transaction progresses and means everyone knows what is expected of them.

This is likely to include a timetable covering aspects such as when contracts will be sent, how long the buyer has to complete due diligence, through to when exchange of contracts and completion will take place. It should clearly set out what is being sold and what may be specifically excluded. And while a non-refundable deposit is usual on exchange of contracts, it is worth considering a deposit on the signing of the heads of terms, as this can protect against a buyer withdrawing without good reason or failing to meet the timetable.

At each stage, the most important thing is that all members of your advisory team are working with each other in a seamless way throughout the process, as well as directly with you. Where the ground shifts, as it inevitably will, it’s important they remain focused on the vision you have for the company sale, and work with you to achieve the best possible outcome in changing situations.

Guide Dogs for the Blind

Having surpassed last year’s achievement, we are pleased to announce that we have raised approximately £10,700.00 of future income for another fantastic charity through our participation in October 2018’s Free Wills Month.

Retail failures – where does it leave the customer?

The last thing that anyone expected was that high street giant Debenhams could shut its doors on so many of its stores. It does go to prove, though, that the British high street is undergoing major changes and could soon become a very different place to the shop-filled precincts we all grew up with. The advent of online shopping, and the public’s final willingness to embrace internet retail has sounded the death knell for many high street stores, including some of our biggest and best-known names.

Why are they failing?

Apart from the digital onslaught that has completely changed the way people shop, one of the biggest reasons for retail failure is the cost of overheads, and in particular business rates. These have spiralled upwards in the last five years, making it almost impossible for retailers to turn a profit. There simply isn’t enough footfall down the average high street to provide the required amount of profit for shops to cover all their overheads. Sadly, that means they eventually have to either restructure their business completely or go bust.

Where does that leave the shopper?

It’s deeply upsetting for the people who lose their jobs as the result of a retail failure, but it’s also a concern for customers too, especially if they’ve paid for an item and don’t receive it before the shop closes, or it’s faulty and still under warranty. Customers who have loyalty cards or vouchers can also be left in the lurch. There are a number of ways you can attempt to try and get your money back, but bear in mind that if the business has failed you may be well down the list of creditors and may have to resign yourself to the fact that you may not get all (or even any) of your money back.

The first thing to do is to make contact, either with the company or with the receivers. Tell them exactly what you’ve paid for, and either ask for a refund, or for delivery of the goods you’ve bought. If you have a voucher then you can ask for it to be refunded, although bear in mind that if the voucher was given as a gift then it’s the person who bought the voucher who will get the money back, not the recipient.

If you can’t get in touch with the business (if they’ve gone into receivership or administration, for example), then you can search Companies House (if they’re a limited company) or the Insolvency Register (if they’re a sole trader or a partnership) to find out who to contact. Bear in mind that this is not a quick process, and it could take several weeks or even months for the information to be released.

What next?

You can try several ways of getting your money back. Firstly, you can register a claim as a creditor by filling out a form and returning it to the administrators. Bear in mind that those with the largest claims (such as suppliers, HMRC, and other major creditors like landlords) will be at the top of the list.

If the value of the item exceeds £100 and you paid for your item by credit card, then you can apply for a Section 75 claim from your card provider.

If you paid by debit card then you can ask for ‘chargeback’, where the card provider requests a refund from the seller’s bank. You’ll need to act within 120 days of the purchase.

In all of these cases, you’ll need one thing – patience. If a company has gone into administration then the process will take months, if not years, to resolve. The smaller your claim, the longer it’ll take to get any kind of resolution.

It’s also unlikely that you’ll get all your money back, as the assets left over after the larger creditors have had their claims settled need to be divided up between hundreds or even thousands of claimants like yourself.

It is very unlikely you’ll get anything back at all for loyalty schemes or cards, as there is very little monetary value attached to these. For vouchers, remember it’s the purchaser who will have to pursue a claim, not the recipient.

If you’ve been left out of pocket by a retail failure, talk to a solicitor who specialises in insolvency claims to get the right advice.

Tax Update

On Wednesday 13 March 2019, the Chancellor Philip Hammond presented his second Spring Statement detailing some of the key up-and-coming changes for the new tax year. A summary of the Chancellor’s speech together with a general update of upcoming changes can be summarised as follows:-

Tax for the individual

Rates and Allowances

Income tax bands for 2018/19

Personal allowance – up to £11,850.00 – 0%
Basic rate – £11,851.00 to £46,350.00 – 20% 
Higher rate – £46,351.00 to £150,000.00 – 40% 
Additional rate – over £150,000 – 45%

Income tax bands for 2019/20

Personal allowance – up to £12,500 – 0%
Basic rate – £12,501 – £50,000 – 20% 
Higher rate – £50,001 – £150,000 – 40% 
Additional rate – over £150,000 – 45%

Capital gains tax allowance for 2018/19

For individuals – £11,700 
For Trustees – £5,850

Capital gains tax allowance for 2019/20

For individuals – £12,000 
For Trustees – £6,000

Notable changes

The Personal Allowance

Q. What is it?

A. The amount of income that you don’t have to pay tax on.

Q. What’s changed?

A. Nothing much, for 2018/19 the Personal Allowance is £11,850.00 and for 2019/20 this will increase to £12,500.00.

Those with ‘adjusted net income’ of £100,000.00

Q. What is this?

A. Adjusted net income is the total taxable income before any Personal Allowances and less certain tax reliefs such as trading losses or (gross) pension contributions. To calculate your adjusted net income there are four key steps which must be done:-

Step 1 – calculate you net income

Add up your taxable income. This could include the money you earn from you job, state benefits, most pensions, dividends, rental income (etc.). Then you must take off any tax reliefs that may apply such as gross payments to pension schemes or trading losses.

Step 2 – take off gift aid donations

Take off any ‘grossed-up’ donations – what you paid plus the basic rate of tax

Step 3 – take off pension contributions

If you made a contribution to a pension scheme where your pension provider has already given you tax relief at basic rate, take off the ‘grossed-up’ amount – what you paid plus the basic rate of tax.

Step 4 – add back tax relief for payments to trade unions or police organisations

Tax relief of up to £100 is available if you make payments to a trade union or police organisation for superannuation, life insurance or funeral benefits.

Q. What’s changed?

A. For those with adjusted net income above the £100,000.00 mark, there will be a reduction of £1.00 for every £2.00 of income above this amount. For the 2018/19 tax year, the personal allowance is completely lost when adjusted net income reaches £123,700, and for the 2019/20 tax year the personal allowance will be lost where adjusted net income exceeds £125,000.

The marriage allowance

Q. What is it?

A. Allows you to transfer £1,190.00 of your Personal Allowance to your spouse or civil partner if they earn more than you. To benefit from this allowance, the lower earner of the couple must normally have an income of below the Personal Allowance of £11,850.00.

Q. What’s changed?

A. Where both individuals in a marriage or civil partnership pay tax at no more than the basic rate, 10% of their Personal Allowance to be transferred to their spouse or civil partner. This can be claimed by an individual’s Executor following their death. It should be noted that it is now possible for the deceased’s Executor to make a backdated claim for this allowance for all years from 2015/16.

Savings Allowance

Q. What is it?

A. The amount of savings income an individual can have without being taxed, for example interested generated from a bank or building society. Savings income is linked with an individual’s income tax band. Generally speaking, individuals who are taxed up to the ‘basic rate’ have an allowance of £1,000.00. For ‘higher rate’ taxpayers the allowance is £500.00. There is no allowance for ‘additional rate’ taxpayers.

Commercial tax

Structures and buildings allowance

Q. What is it?

A. A tax relief on the construction costs for qualifying buildings.

Q. What do I need to know if I am a business owner intending expand, or an investor looking for an investment opportunity?

A. In a bid to improve the UK’s international competiveness, there will be some relief on the construction costs for some non-residential structures and buildings incurred after 29 October 2018. The relief will also apply to the improvement of some existing structures and buildings. Relief is limited to the original cost of construction or renovation and given across a fixed 50 year period, at an annual rate of 2% regardless of change in ownership.

Capital tax

Inheritance tax – nil-rate-band

Q. What is it?

A. Broadly, it is the amount up to which a deceased person’s Estate does not have to pay inheritance tax. It is sometimes called the ‘inheritance tax threshold’.

Q. What do I need to know?

A. Since April 2009, the nil-rate-band has remained at £325,000 and it is frozen at this amount until April 2021.

Inheritance tax – residence nil-rate-band

Q. What is it?

A. From April 2017, the government introduced a new nil-rate-band linked specifically with an individual’s primary place of residence (typically the family home). It is being gradually phased in starting at £125,000.00 up to £175,000.00 by 2020/21. This additional nil-rate-band makes it easier to transfer the family home to an individual’s direct descendants.

Q. What do I need to know?

A. Arguably it would have been simpler for the government to simply increase the ‘normal’ nil-rate-band, but nevertheless having the additional nil-rate-band linked to the family home is undoubtedly a useful thing to have. To fully utilise it however, it is important that people revisit their wills to ensure that the nil-rated amount is not lost. The residence nil-rate-band is a complicated piece of legislation and so it would be prudent to take appropriate advice when carrying out any form of personal estate planning.

April rains for employers with raft of new legislation

Gender pay gaps, itemised payslips and what to do about working rights for EU citizens – these are some of the issues looming large for employers over the coming weeks, with April ushering in many significant dates for new and amended employment legislation.

“It’s hard work keeping up to speed with employment law obligations,” explained employment law expert Amy Cusworth of Oxley & Coward Solicitors of Rotherham . “And there is also uncertainty, as the implications for EU workers are hanging in the balance in the event of a no deal on Brexit.”

She added: “It’s increasingly important to keep on top of the deadlines and make sure you’re facing up to issues that may otherwise pose difficulties later.”

Here, Amy highlights some of the key issues to watch out for in April:

Itemised payslips

New payslip requirements are set to come into force, requiring itemised calculations for variable rates of pay and hours worked. Alongside, the requirement for payslips will be extended to include workers, not just employees.

The two amendments to the 1996 Employment Rights Act will come into force on 6 April 2019. From that date, employees and workers, including those under casual or zero hours contracts, must receive correctly detailed written, printed or electronic payslips.

The greater transparency is designed to help employees understand their pay and see if they are being paid correctly. Also, it is hoped that it will make it easier to identify if employers are meeting their obligations under the National Minimum Wage and National Living Wage and that holiday entitlements are correctly applied.

Equipment tribunal awards limits increase

Also on 6 April, the Employment Rights (Increase of Limits) Order 2019 comes into force, increasing the limits for tribunal awards and other amounts payable under employment legislation for relevant events that occur on or after that date.

The maximum amount of a week’s pay, for the purpose of calculating the basic award for unfair dismissal, and a redundancy payment increases to £525, and the maximum amount of the compensatory award for unfair dismissal increases to £86,444.

Alongside, the maximum level of penalty that an Employment Tribunal can impose on an employer who repeatedly breaches their employment law obligations will increase from £5,000 to £20,000.

Gender Pay Gap Reports

For the second year, organisations with 250 or more employees must publish their annual gender pay gap report to the Government Equalities Office. The figures must be submitted by 4 April 2019 for the private sector and it’s expected that these will come under increased scrutiny to see what movements and improvements have been made by employers towards increased equality.

The Gender Pay Gap Regulations apply to all private, public and voluntary sector organisations with 250 or more employees, who must publish details annually of their gender pay gap, for both basic pay and any bonus payments. The information must be published electronically on their own website and on a dedicated government space.

The aim is to measure differences between the average pay of men and women in an organisation, not just whether men and women are receiving equal pay for equal work. The figures will show the distribution of men and women at different levels across the organisation, highlighting whether an organisation is promoting or appointing women into more senior roles, or whether men are dominating the higher-paid jobs. If so, then the organisation will have a gender pay gap, even if men and women are paid equal pay for equal jobs.

Brexit: settled status

And finally, the Brexit debates rumble on in Parliament, and dates and deadlines all appear subject to ongoing negotiations. But, for now, the pre-scheduled date of 30th March will open the door for applications from EU, EEA or Swiss citizens who have notched up five years of continuous residence in the UK to apply for settled status, in anticipation of the UK’s eventual departure.

This will enable them to continue to live here after the end of the Brexit transition. Alongside, those who do not meet this requirement can apply for pre-settled status, allowing them to remain until they have accrued enough residency to be granted settled status.

While negotiations continue with the EU, the government has confirmed that if the UK leaves the EU without concluding a deal by the deadline, EU/EFTA citizens and their family members already in the UK on that date would still be able to stay by applying under broadly the same terms of the current Settlement Scheme, but would need to do so by 31 December 2020.

Until employees have been granted settled or non-settled status, employers should continue to check the right to work on all current and prospective employees in the normal way.

This includes the changes introduced in January 2019 which allowed employers to rely on online checks to verify a person’s right to work in the UK. The online right to work checking service covers those who hold a biometric residence permit or residence card, or status issued under the EU Settlement Scheme, as an alternative to viewing their passport or ID card.

Stepping up to the challenge of the sale board

By Dawn Cherry, conveyancing specialist of Rotherham based Oxley & Coward Solicitors LLP.

Those thinking about Spring and the changes it may bring are likely to be focused on the countdown towards the Brexit deadline of 29th March, but there are also homeowners, estate agents and solicitors up and down the country who are wondering whether to expect the traditional upsurge in the property market in April and May.

It’s not looking very rosy, according to recent figures from the Royal Institution of Chartered Surveyors, whose members reported that they expected sales to fall in the next three months. Overall, their outlook for the housing market was the worst for 20 years, and the lack of clarity around Brexit has shouldered the blame for that, with lack of supply and affordability also affecting sales.

The conditions are combining to create a buyer’s market for anyone with a mortgage offer, and sellers should get themselves well prepared before they put up the For Sale sign, as it could make the difference between a failed sale and a completion.

Savvy sellers are instructing and making ready before they market. That includes making sure their solicitor has already examined the title, lined up all the paperwork, anticipated any problems and dealt with them in advance. It’s a tactic that avoids delay later and means they are ready to act immediately when a buyer is found.

Here are some of the most likely stumbling blocks to avoid:

Dig out your deeds

Old deeds and conveyancing documents may be important, even though most properties are now registered at the Land Registry and the owner’s title consists of an electronic entry held by the Land Registry. But the old deeds may contain information that does not appear in the Land Registry records. For example, the Land Registry title may state that a property is subject to certain rights or undertakings – known as covenants – but the record may not include the details about what exactly those rights or covenants are, and the only way of finding out is by referring to the old deeds.

Document your building works

It’s tempting to throw away old papers when spring cleaning or thinking of moving home, but anything relating to renovation or upgrading on a property should be kept safe and sound, to avoid problems and delays when you come to sell your house. Internal modifications may have required building regulations consent and, when the work is complete, you will need a certificate confirming that those regulations have been satisfied, together with any planning permission, if that was also required. If you are in a leasehold property, then works requiring approval by the freeholder will need to be documented as well.

Validate your upgrades

Be sure of what paperwork a tradesperson is supposed to provide and make sure you have it on file. Any work involving electricity or gas should be carried out by someone who is suitably qualified and they should certify that the work has been properly carried out in accordance with applicable regulations. Similarly, new oil boilers or oil tank installations should have an OFTEC certificate and new windows should have a FENSA certificate.

It is down to the householder to make sure these documents are provided, so if a tradesperson didn’t give you the right paperwork, then track down what you can before you get too far along the sale process.

Be prepared to bargain

Bargaining doesn’t always stop when the sale price has been agreed. Often a survey may throw up unexpected problems that give a reason for a buyer to come back to the bargaining table, but in tough conditions there can be cases of gazundering when a buyer tries to agree a lower price just before exchange of contracts. Like gazumping, where the seller tries to hike up the price or accepts a higher offer, both practices are perfectly legal; there is no binding agreement as to the price or any other term of the bargain until contracts are exchanged – which usually only happens four to six weeks after the prospective buyer’s offer has been accepted and the conveyancing process begins.

It may be worth asking your solicitor to state at the outset, when they send out the draft contract and supporting papers, that if the buyer attempts to negotiate a lower price, they will immediately insist on the contract papers being returned, which can act as a psychological deterrent to the buyer.

You may still be challenged for a price reduction, and you may decide to agree to one, but you start from a stronger position.

Don’t change the ground rules

Disputes over what is included in the sale can delay completion or scupper a sale. Everyone has heard stories of fixtures and fittings going missing. Gardens being emptied of plants, or fitted units being removed. This sort of detail should have been agreed when the estate agent drew up the details of the property, as anything that is included should have been specified in the sales particulars. If anything is subject to separate negotiation, then that should be clearly set out and agreement made separately.

Be fraud aware

Residential property is a primary target for fraudsters because of the sums at stake. Fake buyers may set themselves up with fake identities and initiate a property purchase so they can channel off mortgage funds. Cyber-criminals are known to be hacking into email exchanges on legitimate property transactions, apparently by using technology that scans through millions of emails to identify data patterns that may reference valuable financial transaction information and then targeting parties involved to try and re-direct funds. Be aware of the potential for fraud when dealing with each stage of the transaction and always verify everything, even where you are sure you know who you are dealing with.

Keep up with the stamp duty

If you’re buying as well as selling, then be aware that new rules for the payment of stamp duty from 1st March 2019 mean that the return must be filed, and the tax paid within 14 calendar days of completing a purchase, down from the previous 30 day deadline. While your conveyancer is likely to be making this payment on your behalf, make sure there are no queries to resolve and that you have signed all the necessary paperwork, if you’re planning on taking yourself off for a holiday to get over the stress of moving.

Landowner carries the can on illegal waste

An illegal waste wood stockpile on land in Devon has seen the landowner prosecuted and left with the clean-up bill after being held responsible for knowingly permitting the tenants’ activities.

The tenants had leased the land for a wood recycling business, but none of the material that arrived on the site ever left, creating a 10,000-tonne stockpile covering the area of a football pitch. When the stockpile was destroyed in a massive fire which burned for five days, the Environment Agency prosecuted not just the tenants, but the landlord as well.

The action saw the landowner, Anthony Joyner from Totnes, fined £3,600 and ordered to pay £5,000 costs after pleading guilty to knowingly permitting the keeping of controlled waste on land where no environmental permit was in force, an offence under the Environmental Protection Act 1990. The Fire Service fought the blaze for five days and Joyner was ordered to pay the Devon and Somerset Fire and Rescue Service compensation of £4,250.

The site was a disused plant nursery which had a 1,000-tonne waste exemption. Waste disposal or recovery operations are either regulated, requiring an environmental permit, or exempt which do not require a permit, but are generally small-scale waste operations with a set limit, as in this case. If the exemption limit is exceeded on a site and no permit is obtained, the operator will be in breach of the Environmental Permitting (England and Wales) Regulations (2016) and have committed an offence.

Waste movements must be recorded and while there was no audit trail for most of the waste wood at the Cockwells Nursery site, the Environment Agency managed to obtain enough waste transfer notes from local companies to prove the site’s exemption limit of 1,000 tonnes had been exceeded and the business was operating illegally.

Said Amy Cusworth, litigation expert with Rotherham Solicitors Oxley & Coward Solicitors LLP: “We are seeing a much tighter approach to pollution control and performance in the waste sector. The Department for the Environment, Food & Rural Affairs (Defra) has recently announced a strengthening of the Environment Agency’s powers to raise standards within waste processing. They are also consulting on changes to the waste exemption regime to prevent it being used to hide waste crime, so things will only become tighter.

“This is not the first time that a landlord has been held responsible for knowingly permitting illegal activities by an operator and the courts are making it clear that knowingly means simply knowing that a waste operation is being carried out, not necessarily that it is unlawful, and permitting means failing to prevent, so ignorance is no defence.”

She added: “Even tougher for landowners is that where an occupier stops trading and abandons waste, then there may be a further offence of knowingly permitting the storage of that waste, which continues unless and until the site is cleared. Regulators have powers to serve notices on landowners requiring the clearance of unlawfully deposited or stored waste and failure to comply can also result in prosecution.

“It means that any prospective or existing tenants who are operating in any waste-related activity need to be subject to due diligence beforehand and then monitored carefully during the tenancy. All licences and permits need to be checked at the outset, and then regularly reviewed, including being sure that proper auditing of waste movements is going on. If waste is coming in, but not going out, then warning bells should sound.”

What is adverse possession? – an explanation of the reality behind ‘squatter’s rights’

If you’re a property owner, one of the biggest worries is that ‘squatters’ will move into a vacant property and take up residency. If they are not removed quickly then there is the possibility that they can acquire the ownership of a property or a piece of land, simply by staying there for a long time. This is known as ‘adverse possession’ or more commonly, ‘squatter’s rights’.

Adverse possession is based on the principle that if the property owner does not evict squatters from their property or land within a certain time or interrupt their use of the land then they could lose the legal ownership of that land to the squatter. However, before you start manning the battle-lines, we’re talking about years here, rather than weeks or months, so the question of adverse possession rarely comes up as most squatters are legally evicted long before the problem arises.

How can someone take legal ownership?

To be granted legal ownership (or title) to a piece of land or property, an application has to be made to HM Land Registry. If granted, the individual’s name will be registered as the legal owner of the land. However, to do this there must be evidence that the applicant (or a succession of previous ‘squatters’) have occupied the property or land continuously for 10 years. If the land is unregistered, then the minimum time period extends to 12 years’ continuous occupancy.

Applicants will also need to show that they (or any previous squatters) have acted as the landowners for the whole of that time, and that no permission from the registered landowner was sought. That means you have to prove factual possession of the land, and intention to possess the land, and that the possession had been ‘adverse’.

To do any of this you will need the help of a legal expert who is experienced in dealing with adverse possession cases, as everything has to be submitted to HM Land Registry in a formal statement of truth.

So for squatters to actually initiate adverse possession of a piece of land requires a great deal of hoop-jumping, some serious legal intervention, and at least a decade of continual, uninterrupted occupation of the land or property.

What about the actual landowner’s rights?

It appears at first glance that adverse possession allows squatters to take control of a piece of land that’s already owned by someone else and, as long as they stay put for long enough, they can lay claim to it. This is an over-simplification, as there are things landowners can do to stop this from happening.

The most obvious is to apply for a legal eviction long before the question of adverse possession arises. The first thing to do is to get an Interim Possession Order (IPO) or make a claim for possession. Whatever you do, don’t try to evict squatters yourself using threats, force or violence. Not only will this escalate the situation, but it will put you on the wrong side of the law, too.

An IPO can be applied for after the squatters have been there for 28 days. It’s a simple matter of filling out an IPO and filing it with the local county court. You will then receive documents that must be given to the squatters within 48 hours of receipt.

Squatters then have 24 hours to leave the property and must stay away from it for 12 months. This will effectively negate any chance of them applying for adverse possession, as it’s seen as an interruption of their occupancy of the property or land.

Stopping the clock – how the legal owner can prevent adverse possession

If the legal owner of the land or property physically prevents the squatter from occupying the land, then they can effectively ‘stop the clock’ on the 10-year period. This could be through erecting a barrier or fence, locking and barring a building, or repossessing the property (see above). The owner can also start legal proceedings of their own as soon as they receive notification that a squatter is applying for adverse possession.

If, however, nobody objects to the application then the registration may go through unchallenged. As the squatter doesn’t usually have all the documentation in place at this point to register an absolute title on the land, they’re granted ‘possessory title’ registration (a sort of temporary status) before having absolute title after a set period of time. Adverse possession is nearly always contentious and usually challenged by the legal landowner, so cases are rarely seen all the way through to fruition. In the vast majority of cases the legal landowner will apply to evict the squatters long before they have any chance of applying for adverse possession, so the legend of ‘squatter’s rights’ is perhaps somewhat overstated. However, if you are thinking about applying for adverse possession, or are a landowner who is dealing with squatters then the best advice is to talk to a property law expert as soon as possible.

Equality takes centre stage for employers

The #TimesUp campaign has captured headlines with its push for greater diversity and equality in Hollywood and the entertainment sector, but these shifting attitudes are mirrored in legislative changes in the UK which will affect employers in the coming months.

In a series of developments, companies are expected to demonstrate an increasing commitment to an equal, inclusive and supportive workplace and are being encouraged to take steps towards the scheduled and anticipated changes, which will demand a shift in both process and culture.

Last year saw the introduction of Gender pay gap reporting. Under the Equality Act 2010 (Gender Pay Gap Information) Regulations, all private sector organisations with more than 250 employees must publish details of their gender pay gap, for both basic pay and any bonus payments. The first reporting had to be submitted by 4 April last year, with a requirement on organisations to provide updated information annually in future, meaning deadlines for the second round of reports are fast approaching.

Alongside, the Government is moving to require reporting for both executive level and ethnic pay gaps, both of which will require data capture in good time to meet future reporting requirements.

First will be the requirements on Executive pay gap reporting, with rules now in force that require UK quoted companies with more than 250 employees to set out the ratio of the CEO’s pay and benefits compared with that of employees. It applies to financial years commencing on or after 1 January 2019, and the first reporting will be due in 2020. As well as the reporting submission, the information must be included in future directors’ remuneration reports.

Hard on its heels is the prospect of mandatory Ethnic pay gap reporting, which is likely to pose many challenges for data collection, depending on the final requirements established. The issue was put out for consultation, which has now closed, and while it is expected by many commentators to be confined to organisations with over 250 employees, in line with other pay gap reporting, there have been calls to include smaller organisations of 50+ employees.

The consultation has explored which employers should be involved, the ethnicity pay data to be reported and what supporting information employers may be asked to provide, such as an action plan to tackle any identified bias. But whatever the final requirements, they are expected to be challenging to implement. Amy Cusworth of Oxley & Coward Solicitors explained: “The consultation has looked at the challenges of collecting, analysing and reporting ethnicity pay information if it is to be meaningful. One of the problems is that there is no legal obligation for employers to collect information on ethnicity and even where they try to do so, an individual can choose not to disclose their ethnic group.”

Alongside, organisations are likely to find themselves having to explain how they are supporting parents and other carers in their workforce, with the Government exploring the possibility of a new law requiring employers with more than 250 employees to publish details of their family-friendly policies.

One such policy is for bereaved parents. The new Parental Bereavement Leave and Pay Act will give all employed parents the right to take two weeks off work if they lose a child under the age of 18 or suffer a stillbirth from 24 weeks of pregnancy. The entitlement will have no minimum service requirement and the parent will have 56 weeks from their child’s death to take the leave. Those parents who have been in continuous employment for 26 weeks with their employer will be able to claim pay for the leave.

“While the new right is not expected to come into force until April 2020, employers will need to start preparing now, and may wish to consider introducing their own bereavement leave policy, if they don’t already have one, particularly with the focus on demonstrating good practice that we are seeing,” added Amy.

“Last year’s Oscar winner Frances McDormand captured headlines with her calls for an ‘inclusion rider’ in movie contracts, so as to achieve certain diversity and inclusion thresholds in future, but we are seeing a significant shift in attitudes across the sectors. Certainly, for employers in the UK, there are increasingly tough requirements to act responsibly and inclusively.

“And while employers do not have any obligation to provide any narrative around their gender pay gap, or to do more than fulfil their legal requirements, being open and up front with explanations and future plans may help to limit any reputational damage as comparisons will be made and progress expected, in this and all other aspects of equality.”

Who chooses whether your kids get vaccinated?

For decades, vaccinations have been regarded as the most important form of defence against childhood illnesses like measles, mumps and rubella. And for decades, parents happily vaccinated their kids to protect them (and others) without question. Then, around 10 years ago, serious doubts began to be raised as to the safety of vaccines by the now-discredited Andrew Wakefield, who called into question the safety and validity of combination vaccines like MMR. Despite the research eventually being proven to be full of errors and, in fact, flat-out wrong, some parents decided to stop vaccinating their children for fear of supposed side effects such as autism.

Now, the World Health Organisation has declared that the failure to vaccinate children against even the simplest of illnesses could lead to worldwide epidemics. They’ve gone so far as to declare anti-vaccination as the ‘Top threat to World Health in 2019’. When you consider that other threats on their ‘top ten’ list included Ebola, pollution and famine, the fact that anti-vaccination took the top spot demonstrates just how seriously the WHO takes the threat of ‘vaccination hesitation’.

The WHO has been monitoring the situation and has raised serious concerns regarding the spread of illnesses like measles into populations that had been previously clear of the disease. They estimate that vaccinations currently prevent between 2-3 million deaths a year, but since anti-vaccination ‘fever’ took hold, they’ve seen a 30% rise in the number of measles outbreaks globally.

While not all of these are the result of anti-vaccine campaigning, the WHO does believe it has a considerable impact on parents’ decisions to get their children vaccinated.

What’s the legal position on vaccination?

In the UK, vaccination is voluntary, so you cannot be ‘forced’ to vaccinate your child. If a school has a vaccination programme, they cannot insist that your child (if they are under 16) participate. So, if you withhold consent to participate they cannot override your decision, although you may find you come under some pressure to allow your child to be vaccinated.

Can the child make the decision?

Children under 16 can refuse consent to be vaccinated, but it is rare. Older children can also go against the wishes of an anti-vaccination parent and give their permission for the vaccine to be administered.

The murky nature of the law around vaccination is being investigated by the Joint Committee on Vaccination and Immunisation, but at the moment there doesn’t appear to be any serious move towards compulsory vaccination. There are worries that to do so would contravene aspects of human rights legislation. Compulsory vaccination also has very little support in any party’s mandate and has never been debated in Parliament.

In France and Italy, there is compulsory immunisation against illnesses such as polio, diphtheria and tetanus, but the only time that mandatory immunisation has been tried in the UK was back in the 1800s. It didn’t go down well with the population, and it’s highly unlikely that it would receive a warm reception from the public today.

The courts cannot force a parent who doesn’t want their child to be vaccinated to capitulate, and by the same token if a parent does want their child immunised but their partner doesn’t then they cannot force the issue via the courts.

Vaccination seems to have slipped through the legal net, with no clear direction on what is or isn’t acceptable. It’s also a topic that can really cause emotions to run riot, and battles between ‘anti-vaxxers’ and those who support the use of vaccines to prevent childhood illnesses can sometimes turn ugly.

Get legal advice

If you’re confused as to what your rights are (for example, if you prefer not to have your child vaccinated and are being put under pressure by your child’s school to participate in a vaccination programme), then the best thing to do is to talk to a legal expert who specialises in family law. While there may not be any reason to escalate a case to the courts (who would be reluctant to become involved anyway), they may be able to act as a mediator to try and bring about some kind of resolution between the parties.

Soaring fees set deadline for executors and estate planning

Controversial court fees which have been branded a stealth tax on bereaved families are expected to prompt a surge in probate applications before the hike hits. The new banded fee structure will see the cost of probate soar by thousands of pounds for higher value estates.

The current flat fee is £215 for a personal application for probate, or £155 when handled through a solicitor, but this is to be replaced by a tiered set of fees. While the fees have been reined in from the original proposal last year, which would have seen charges of up to £20,000, the biggest estates will still find themselves paying £6,000 in court fees.

The fees are payable to the court when the executors apply for formal authority to act in the administration of the estate, once they have identified and itemised all the assets owned by the person who has died. This follows submission of the inheritance tax return for the estate and payment of any inheritance tax that is due.

And until the application for a Grant of Probate or Letters of administration has been approved by the court, the executors are unable to bring in the assets of the estate. Banks will not release the funds held in bank accounts, the proceeds of shareholdings cannot be handed over and no houses or commercial property can be sold until probate has been obtained.

As no funds can be distributed until the Grant has been issued, except for payment of funeral costs and inheritance tax, there are concerns that families will struggle to pay the probate fees before they can access the money locked in the deceased’s estate.

And those estates that comprise high value property, but are short on liquid assets, may find themselves paying high court fees without any expectation of cash to offset the cost. This could be the case where a husband or wife has died and the survivor needs a grant of probate to transfer the property into their sole name.

Said Mrs Jayne Jackson, Head of Probate at Oxley & Coward Solicitors LLP: “For executors who are already in the process of administering estates, especially larger ones where the increased fees will be more of a hit, it’s worth reviewing the position to see if they can get the estate ready to apply for probate sooner rather than later. It’s currently expected to be April when the switch is made to the tiered fee structure, but it could be earlier and there will be just 21 days from the announcement until the new fees kick in.”

“Looking to the future, if you expect your estate is going to be affected then it’s worth getting some advice. There are only limited ways in which to tackle the amount of fee that will be due, but there are other ways in which you can ease the burden for your executors.”

Ways in which forward planning may help, according to Jayne, include taking out a life insurance policy and putting it in trust. If made over in this way for the benefit of a family member, or other beneficiary, the pay-out will not be included within the estate and can be accessed on death without the Grant of Probate.

Leaving property to a surviving spouse by means of a trust rather than an absolute gift will reduce the value of the surviving spouse’s estate for the purposes of the court fee calculation when he or she dies.

She added: “The important thing when estate planning is to make sure you understand all the implications and check that what you’re planning will solve the problem and not create a new one, which is why you do need to get specialist advice if you’re getting into more technical areas.

“For example, the taxman is taking an increasingly forensic approach to checking out transfers of property made before death. Growing numbers are handing over property to family but continuing to live there, which is known as a ‘gift with reservation of benefit’ and gives rise to all sorts of complications and potential tax liabilities.

“It’s good practice to regularly review your estate and tax planning, as things are always changing, so this is a good time to do that temperature test.”

New probate court fees from April 2019:

Estates with a value of less than £50,000 will be exempt. Above that, the fees will be on a sliding scale from £250 to £6,000.

Estate value Fee

Up to £50,000 or exempt Nil

£50,000-£300,000 £250

£300,001-£500,000 £750

£500,001-£1m £2,500

£1,000,001 – £1.6m £4,000

£1,600,001 – £2m £5,000

Over £2m £6,000

This is not legal advice; it is intended to provide information of general interest about current legal issues.

New employment rights raise another red flag for employers

Who’s who on the payroll is an ongoing challenge for employers in the run up to new payslip requirements

The two amendments to the 1996 Employment Rights Act will come into force on April 6 2019. From that date, employees and workers, including those under casual or zero hours contracts, must receive correctly detailed written, printed or electronic payslips.

But while the change itself is straightforward, new payroll procedures and alternative software may be needed to satisfy the new requirements.

Alongside, a more complex question for many companies when it comes to implementing the new requirements will be whether someone is an employee, a worker or a self-employed contractor.

Many organisations do not recognise that even where someone is not an employee, they may still be categorised as a ‘worker’ and be entitled to certain rights such as the national living wage, paid holiday and sick leave. An employee may also be a ‘worker’, but with extra employment rights and responsibilities.

And the boundaries as to who is a worker and who is self-employed are increasingly difficult to pin down following high-profile cases involving Uber and other so-called gig economy companies, with individuals winning the right to be treated as a worker, rather than a self-employed contractor.

“Many employers are not meeting legal minimum requirements because they do not understand their employment law obligations when it comes to workers. It’s hoped that this new process will be one step towards improved awareness,” explained Miss Amy Cusworth, Partner of Oxley & Coward Solicitors LLP.

“The distinctions between an employee, a worker and a self-employed contractor may not be clear cut for some organisations, so it’s important to keep abreast of what’s going on in employment law and what legislative changes are coming up. That way you can keep ahead of the deadlines and make sure you’re facing up to issues that may otherwise pose difficulties later.”

What needs to be included in the written statement of wages

· the amount of gross wages or salary

· for any part that varies according to time worked, the total number of hours worked and the rate of pay, either as a single aggregate figure or separately for each type of work or rate of pay

· the amounts of any deductions and what they relate to

· the net amount of wages or salary payable

· if paid in parts, the amount and payment method for each part

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No. 2) Order 2018

Disinheritance – a quick guide to cutting someone out of your will

The message is slowly starting to get through to the public – making a will is an important life decision that could save your relatives a great deal of heartache once you’ve gone. You can express your wishes, designate who gets what, and that’s the end of it.

Or is it?

Law firm Nockolds reported that the number of disputed wills has shot up in the last couple of years, from 116 in 2015 to 158 in 2016. That may not seem like a high number, but it represents nearly 160 families in turmoil, with the last Will and Testament of the deceased being openly challenged in the courts. Disputes over wills can last for years, while fees eat into the inheritance of those contesting who gets what.

The number of disputed wills quoted by Nockolds may just be the tip of the iceberg, though. It’s thought that far more are settled before the dispute reaches the courts. So, what are your rights if you do decide to leave someone out of your will, and how can you ensure that your last wishes are not challenged after you’re gone?

The Inheritance Act 1975

If the nearest relatives (the spouse, children, or dependant) feel that a will does not make adequate provision for them, then they may be able to challenge it. However, because ‘ adequate provision’ is such a vague term, it is open to interpretation and, therefore, dispute.

If a person challenges a will under this provision, then the courts will look at a number of factors, such as the financial situation of the plaintiff, and the needs of other people named in the will. However, it’s an area that’s filled with so many shades of grey, it can be almost impossible to navigate a clear path through, and someone, somewhere, is invariably going to end up disappointed.

Why the rise in challenges to wills?

Much of the increase in inheritance disputes has (rightly or wrongly) been put at the door of what is termed ‘blended families’ – those units where spouses are on their second marriage and bring with them children from a previous marriage or partnership. The fact that step-children are often factored into a will can cause conflict between blood relatives and those who are part of the family unit through marriage.

The Ilott case

It’s a sad fact of life, but sometimes relationships between parents and children break down, in some cases, irretrievably. It’s quite common in these instances for a parent to cut a child out of a will entirely and give the inheritance to another party (often a charity) not only because they support that charity, but to snub the child. A flurry in recent cases (such as the high profile Melita Jackson case last year) have highlighted this problem. Mrs Jackson had left her daughter, Heather Ilott, out of her £500,000 Will when she passed away in 2004, instead bequeathing the money to three animal charities. Ilott challenged the Will, and was awarded £50,000.

However, she again challenged this ruling and the amount was raised to £163,000. Once again, the ruling was contested by Ilott, and the high courts reversed the final amount, leaving her with just £50,000, much of which was taken up in legal costs. It demonstrates that sometimes, continually contesting a ruling can in fact be counter-productive.

Leaving a child out of your will

To avoid all the potential unpleasantness that comes with contesting a will, there are things that you can do to avoid the situation in the first place, when initially drawing up the will document.

If you do decide to leave someone out then it’s important you make your reasoning clear, preferably in writing. Known as ‘attendance notes’, they can be left with your solicitor for up to six years and show that the child was considered, and that the final decision was not a ‘spur of the moment’ impulse, but a measured and carefully thought-out choice.

If you are suffering from dementia (even in the very earliest stages) then it’s important that a doctor testifies that you are of ‘sound mind’ and are fully mentally aware of the contents of your will. Having your doctor act as a witness puts a seal on this and could help prevent the will being questioned later on due to the grounds of mental incapacity.

Rather than cutting someone out entirely, it may be a good idea to leave them a token gesture or offer an inheritance amount on condition that the child does not contest the will.

Finally, one of the best ways of ensuring a fair distribution of your estate is to place it in trust, as long as it is not obvious that it has been done to deprive a child of their inheritance. The money will be controlled by the trustees, and it’s usually only worth doing this if the amount exceeds £20,000.

If you’re having trouble deciding how to draw up your will, or if you are thinking of omitting a close relative and you want to ensure your wishes are adhered to, talk to a family and probate law specialist.

What happens when a parent wants to move away and take the children with them?

These days more and more people are spending time abroad, whether they’re overseas on business, trying to build a new life in a different country, or just taking a long trip.

There are plenty of reasons a parent might want to take their child abroad for an extended period, or even indefinitely. However, if the parents have separated, there’s a possibility that this could result in disagreement, especially if one party feels they are being ‘pushed out’ of the family unit and that the move is done to deliberately reduce the amount of time they can spend with the children.

If it’s done amicably, and good arrangements are put in place to ensure the children spend a reasonable amount of time with each parent, then there shouldn’t be a problem – regardless of whether one party moves to an EU or non-EU country. However, if the process is rushed, isn’t given enough thought, or is done out of malice, there could be serious consequences further down the line, especially for the children.

Living Arrangements

Living arrangements settled outside court require a lot of co-operation between the parents. So, generally, ex-partners tend to live relatively close to one another to ensure the child has adequate contact with each parent. Naturally, this is tough to achieve if one parent wants to move abroad with the child. Currently, there are no major barriers on movement between the UK and the EU, so it should be easy for contact to be maintained. However, bear in mind that in a few months’ time we’re exiting the EU, and restrictions on both residency and free movement between the UK and the EU may change dramatically. It’s a matter of ‘watch this space’, and if you are planning to move abroad, talk to an expert in family law who may be able to advise you on the various scenarios we may be facing once the Brexit dust settles.

If you’re moving abroad and want to take the children with you, or if you’re the one being left behind in the UK, you need to know your rights – not just for yourself, but for the sake of your children, too.

Parental Responsibility

Firstly, you need to find out whether you have parental responsibility for your children. If you do, then you legally have a right to contribute to the fundamental decisions that impact your children. This includes whether your child moves abroad with your ex, or stays in the UK with you.

Presently, by default, mothers have parental responsibility. Fathers only automatically gain these rights if they’re married to the mother. Unmarried fathers can also acquire these rights if their child was born after 1st December 2003, as long as the father is named on the birth certificate.

If your child was born before 1st December 2003, and you are not married to the mother, you don’t automatically have parental responsibility unless:

The court grants you parental responsibility
You’ve entered a formal agreement with the child’s mother using the appropriate documentation.

You have parental responsibility, now what?

If you have parental responsibility, your ex can’t take your children out of the country to live abroad legally unless you give your permission.

If you’re happy with their new living arrangement, it’s wise to get a UK court order highlighting the terms of the agreement. This should include the amount of contact you’ll have when the child moves abroad. Once completed, get a “mirror” order from the EU country the child is moving to. This is essential, as all issues of custody are then dealt with by the laws set in the country where the child is living.

What if you don’t want your child to move?

If you don’t want your child to move abroad, your ex-partner needs to apply to the court for an order to agree to their case. If they decide to press the issue, always get professional legal advice.

Sadly, sometimes children are taken abroad without permission from the other parent. This is known as ‘child abduction’. Fortunately, there are legal agreements between the UK and the other EU countries that make it easier to ensure the safe return of your child to the UK if they have been taken without consent.

If you’re a parent handling a child abduction case, make sure you:

Hire a solicitor who specialises in this field
Make an application to the court as quickly as you can.The case in non-EU countriesHowever, it will also depend on the individual laws in the country your children are now living in, and what kind of cross-border relationship there is between the two legal systems as to whether this agreement is acted upon. Put simply, even if you do get a written agreement in place before the children move abroad, there’s no guarantee that it’ll be enforced by the legal system in the country that the child is now living in. That can make it very difficult to challenge the arrangement unless you have clear proof that the welfare of the child is at risk.
If your ex-partner is planning to take your children abroad, speak to a family law specialist as soon as you can.
Outside the EU, things can get more complicated. You can come to an arrangement (in writing) concerning how often the children can visit, who pays for travel costs, and how much say the parent left behind has over their day-to-day concerns such as education, etc.
The faster you file your application, the sooner your child will be returned. Then, once the child is back in the UK, the court needs to decide whether it’s appropriate for your ex to move abroad with your children on a more permanent basis.

A quick guide for first time buyers

Buying a home is stressful, especially for first-time buyers, so it’s wise to do some research to ensure you know exactly what you’re getting yourself into. Conveyancing is the term that refers to the legal process of transferring one person’s property (the seller), to another (the buyer).

What does the process involve?

Put simply; this is what conveyancing looks like from start to finish:

Get your mortgage sorted out before you start looking, so you know what your budget is.
Find the property you want.
Put in an offer i.e. tell the seller what you’re willing to pay for the property. This is also the time to raise any conditions you have.
The offer’s accepted. At this point, you’ll need a survey to check the property’s condition, and your solicitor will review any legal issues.
The checks will include a wide range of examinations, including the structural integrity of the property, whether there’s any signs of subsidence, damp or damage, and whether there are any existing plans for the immediate area that may impact the property.
Your solicitor will also check with the local authority, utilities and environmental department to find out if there are common drains that serve multiple properties, there is any history of land contamination, or if you are responsible for any shared public access points. They’ll also look at the deeds and boundaries to see if there are any disputes with neighbouring properties. If everything comes back okay, you can move onto the next level – buying your home.
Exchange. This is when you pay your deposit, which means you can’t back out of the deal without losing a lot of money.
Completion: Now you hand over the rest of the money for the house in exchange for both the keys and the deeds. At this point, the property is legally yours.

You should note that nobody is legally bound to complete the transaction until contracts are exchanged.

Top Tip: As part of the process, ask for a list of fixtures and fittings the seller is willing to include within the cost of the property. Get this in writing. That way you’ll manage your expectations and won’t get a nasty surprise upon arrival.

What is Gazumping?

This term refers to another buyer offering more money to the seller than you have, and the seller goes back on the deal you made. Sadly, you can’t legally protect yourself from this happening if this occurs prior to exchange. However, it’s always worth asking the seller to take the property off the market as part of your original offer. This rapidly reduces the likelihood of another buyer submitting a higher price.

What is Gazanging?

Gazanging is when the seller cancels the sale to stay in their property. This could occur when the market price shoots up as there’s a good chance the seller will make more money if they wait to sell in a few months’ time.

In the unfortunate even that you suffer from either gazumping or gazanging, you’ll probably lose a lot of money, especially if this occurs just before the point of exchange. Typically, both your solicitor and surveyor will have carried out a lot of work, costing you both your precious time and money. All you can do is act quickly when it comes to finalising the offer and exchanging the contracts. This will probably involve working with your solicitor and mortgage lender to speed things up.

Finding a mortgage and doing all the checks
If you are buying a property then make sure you’ve got your finances in place first. If you go house hunting before you’ve gone mortgage hunting, you’ll complicate the process, especially if you don’t get the full amount you need and have to scrabble around to make up the shortfall. Don’t automatically go with the first lender you find; mortgage products change almost daily. There are so many mortgage lenders out there, all hustling for your business, especially if you’ve got an excellent credit score. It’s almost inevitable that another lender will match your bank’s offer, or even try to tempt you with a better deal.

Always get a personalised mortgage illustration: this should highlight the important features of your mortgage. Taking out this kind of loan is a massive commitment, so do your due diligence and don’t sign up for anything you’ll regret later on. Remember, a mortgage typically lasts for 25 years, so this is a long-term commitment and not something to be rushed into without a lot of careful thought.

Once you’ve got your finances straight, it’s time to…

Choose Your Conveyancing Specialist

Licensed conveyancers are solicitors who specialise in property law. They’ll handle all the paperwork and conduct the necessary searches to satisfy both the Land Registry and local council. They’ll also:

Draft the contract
Manage the exchange of money between the buyer and the seller

Top Tip: Budget up to £1,500 for hiring a conveyancing solicitor.

It’s recommended that you find a legal expert who is familiar with conveyancing early on. This makes the process a whole lot smoother and helps to ensure everything goes through as quickly as possible.

Can’t afford to get on the property ladder? Shared ownership could be an option

The price of properties, even so-called ‘first-time homes’ is completely out of proportion to the average income. To save for a deposit on your first home is now taking house-hunters (especially first-timers) years longer than before. The ‘Bank of Mum and Dad’ is an option if you’re struggling to get the funds together on your own, but if you don’t have the ability to borrow from family members, or are unable to raise the money for that essential deposit on your own, there is another way to get your foot on the first rung of the property ladder.

Shared ownership – what is it?

Shared ownership properties are only available through housing associations. Put simply, you go into partnership with the association and buy a stake in a property of between 25-75%. You’ll still need a deposit and a mortgage, but depending on how big a stake you purchase, that’ll be considerably less than you’d have to find for an outright purchase.

The housing association continues to own the property and you pay ‘rent’ on the remaining percentage of the property owned by the housing association. They charge a fixed amount of rent based on the value of the property, up to 3%. So for example, if you have a 40% share in a house worth £150,000 (£60,000), you would then pay the rentable value on the remaining £90,000 at a rate of 3%. So your rent would be around £2,700 a year, or approximately £225/month. That’s far, far less than you’d pay in normal private rented accommodation.

Who can apply for shared ownership?

Technically, anyone who is a first-time buyer can apply for shared ownership. If you’ve owned a property before but cannot afford to buy one again, then you may apply for shared ownership, but be aware that first-time buyers will be more likely to be accepted. Military personnel get priority treatment.

If your household income is less than £80,000 a year (and £90,000 in London) then you’re eligible to apply for a shared ownership home. You can also sell your ‘share’ of the property at any time.

Staircasing – climbing the property ladder to full ownership

At any stage during your time in the property you can buy a larger percentage so that you get a little closer to owning the property outright. This is called ‘staircasing’. The cost will entirely depend on the value of the property at the time you decided to staircase, and not the original value when you first agreed to a shared ownership deal.

It does vary, but generally you’ll have to purchase a minimum of 10% each time you staircase, usually you’ll only be able to do it three times, and for some housing associations they’ll only let you make that third staircase purchase if you intend to go for 100% ownership and buy the property outright.

Is it a good idea?

Shared ownership is a great idea if you’re desperate to get onto the property ladder but just don’t have the funds for an outright buy. It’s also generally cheaper than private renting, and you can sell your share in the property at any time.

However, you’re limited to where you can buy shared ownership properties, so if you have a preferred location do some intensive research first to see if shared ownership properties are available. Check, too, whether local residents who already live in the area have priority, as can be the case in more rural locations.

Staircasing means you can decide when (and if) you want to make a block payment towards owning the property outright, which will decrease your rent and increase your share in the house. But it can be difficult and expensive, as the percentage will be based on the current value of the property, and not the original purchase price. You’ll also have to pay service charges, especially if the property is on a leasehold agreement.

Remember, that like any other property purchase, it’s important to have your finance in place before you go house hunting. You’ll still need both a deposit and a mortgage to buy into a shared ownership property.

Get some legal expertise

As with any house purchase, the one thing you need in your corner is expert legal advice. The intricacies of buying a property are complex enough, but with shared ownership it’s absolutely essential to have a legal expert who can take you through the process. They’ll be able to advise you on whether the shared ownership contract on the table is the right one for you, and if you do decide to staircase later on then you’ll need their advice and help to sort out the paperwork, too.

Price wars: How not to become a casualty

Competition in retail is at an all-time high, with even the big names on the high street struggling under the endless weight of overhead-free online retail. Combine that with a consumer base that has a more discerning eye for a bargain and an ever-tightening belt, with continuing worries of economic uncertainty – and it’s no surprise that price wars are becoming fierce. Whilst offering an enticing discount is a sure-fire way to attract customers, if it’s offered in a misleading or untruthful way it could end up costing a business far more than they bargained for.

What do I need to know?

Very simply, retailers have a responsibility not to mislead their consumers, but what does this look like in practice?

The Chartered Trading Standards Institute’s Guidance for Traders on Pricing Practice was produced in December 2016 and replaces the previous Department for Business Innovation and Skills Pricing Practice Guide. At first glance the content seems the same, and there certainly are similarities. A key difference, however, is that the onus is now on retailers to prove that their pricing system is not misleading. Responsibility is put back to the retailer to consider the consumer in their advertising, rather than just complying with a fixed set of rules. It is up to the retailer to prove they have considered the guides recommendations and that they applied due diligence to promotions. Businesses will need to provide evidence that they have done this.

What can businesses do to be sure they comply?

The CTSI Guide breaks this down very nicely, making it easy for retailers to check that any promotional prices are likely to comply with the guidelines.

It suggests that retailers ask the following

Is any information (however it is given) false?
Even if information is factually correct, will it, or the way it is presented, deceive or be likely to deceive?
Is information that a consumer needs to know omitted, hidden or given in such a manner that is unclear, unintelligible or untimely? (CTSI Guidance for Trading Practice April 2018)

By asking these questions, retailers will be able to scrutinise their policies and ensure that the consumer is not misled.

This goes beyond the fabled 28-day rule, moving to discourage practices such as pricing seasonal goods out of season, then reducing to allow a discount to be shown at times of peak demand, or using a reference price where only a minimal amount of goods have been sold at that price. The guidance frowns on false price comparisons, such as using the highest retail price as a reference point, where there have been lower prices in-between, or using different reference prices across the brand, but choosing the highest price as a reference for a company-wide promotion.

The guide also highlights the importance of keeping promotions current, for example advertising a product as cheaper than a competitor but not monitoring the difference to ensure validity, would be viewed unfavourably. It is essential that businesses can demonstrate they have safeguards to protect against changes in promotional details, such as regular monitoring and updating.

Misleading by omission is also highlighted, for example if a restaurant offers two meals for £20 but only on a Wednesday, this must be clear on any promotional material.

Using the resources available, such as the Guidance for Trading Practice will help marketing and legal teams to stay within the guidelines, and to avoid any disputes. If a promotion is flagged to the CTSI then it is vital that businesses can answer the questions detailed above, and provide evidence of safeguarding, otherwise the penalties are costly, both financially and in terms of reputation. In this competitive market no business can afford to lose the trust of its customer base.

Illegal Eviction: what is it and what are the consequences?

Illegal eviction is a criminal offence. The law is very specific and solid in its procedures for eviction of any tenant who has an assured shorthold tenancy agreement, and tenants are covered by the Protection from Eviction Act 1977 to ensure the processes and notice periods are adhered to.

What makes an eviction illegal?

In short, if the correct steps have not been followed to the letter then an eviction could be deemed illegal. The most common type of private tenancy is the Assured Shorthold Tenancy (AST), which applies to most private home rental agreements undertaken after 1989. For termination of an AST the following steps must be followed:

Give notice. The most common methods are via a Section 21 notice for eviction after the end of a fixed term, or a Section 8 notice for eviction because the terms of the tenancy have been broken.
Acquire a standard possession order from the courts.
Acquire a warrant for possession if tenants will not leave.

At first glance this looks straightforward. The reality is that eviction is a lengthy legal process that is designed to protect the tenant from unscrupulous activity. A landlord must dig down into the detail of the tenancy to ensure the law is being followed. The tenant has the right to challenge the eviction notice, and this challenge can be for a range of reasons. These can be minor details, such as misspelling a name on the tenancy or not using the correct form, to more significant errors like omitting to supply a Gas Safety Certificate or giving an incorrect notice period.

The rules vary according to whether the tenancy is a periodic or fixed term, and landlords must be aware of the specific details pertaining to the tenancy they offer.

The law also protects tenants from eviction by harassment. Harassment is described as “anything a landlord does, or fails to do, that makes you feel unsafe in the property or forces you to leave” (gov.co.uk 2018). Actions such as refusing to do repairs or stopping services are regarded as harassment, as well as more obvious actions such as making threats or anti-social behaviour. If a tenant can prove any harassment has taken place, then an eviction will be deemed illegal.

What are the consequences of illegal eviction?

If a landlord is found guilty of illegal eviction, they face a fine and in some cases a jail term. At first glance the fine can seem small, but when combined with the cost of compensation the financial impact on a landlord who has not followed the correct procedure is significant.

When calculating the compensation, the courts will consider the impact that illegal eviction has had on the tenant, looking at the amount of time the tenant has been homeless, as well as the consequence of any harassment or behaviour that has caused grievance to the tenant. The famous Cashmere v Walsh case resulted in the awarding of compensation of an astonishing £81,215. Whilst this is an extreme example, the financial consequence of not following the laws around eviction can be significant.

In addition to the compensation awarded by the court, the reality of ignoring the law around eviction means that a tenant has the right to remain in the property. This is a fact that will be particularly frustrating if the reason for an upheld challenge is because of a foolish mistake such as an incorrect date on a form.

It is vital that landlords understand the laws around eviction and that the laws are in place to protect the tenant from becoming homeless. Being intrinsically aware of the details of their tenancy agreement and the consequences of not following the correct process will protect those most scarce of commodities; money and time.

Photography and Privacy – a guide

Nowadays nearly everyone owns a smartphone. Typically, these fabulous pieces of tech boast high-quality cameras; making photography a more popular pastime than ever before. We’ve all become dedicated snappers, whether it’s selfies, landscapes, or holiday pictures to share on social media.

However, this has prompted a significant conversation over people’s right to privacy, especially on the issue of taking pictures in public.

Where Does the Law Stand on This?

If you’re taking photos from someone’s private land, you need the owner’s permission. Conversely, if you’re on a public right of way, for example, a highway or a pavement, then you’re permitted to take photos for both commercial and personal use. However, you can’t cause any obstruction to others. Otherwise, you could be liable for ‘nuisance’.

As an extension to this point, you’re allowed to take pictures of people in public spaces (as creepy as that sounds). However, this has to be within reason. Naturally, you can’t behave in any way that constitutes harassment.

What’s Harassment?

For you to harass someone, the act must occur at least twice which results in someone else’s ‘alarm or distress.’ If you’re a member of the paparazzi, you should take note of this.

On the flip side, if you’re experiencing someone continually taking your photo in public without your permission, and against your will; you might be the victim of stalking, and their behaviour might constitute harassment. If you feel uncomfortable, speak to the police.

What About the Concept of Privacy?

The law is relatively ambiguous when it comes to defining an ‘invasion of privacy’.

The principal thing to bear in mind is that people have a reasonable right to privacy. However, taking snaps without someone’s consent is usually a civil matter, not criminal (unless the pictures are indecent).

Further issues typically arise over what’s done with the pictures after they’re taken.

In light of this, you should always ask the subject of the image whether they’re happy for you to publish the snap. You should let them know where you intend on posting the photographs.

It’s best to err on the side of caution if someone’s readily identified in the photo. Get them to sign a media release form. This omits the likelihood of any complications arising in the future, especially if the snap is defamatory. Remember, too, that depending on which platform you post the pictures, the platform provider may have a clause in their T&Cs that allows them to use any picture you publish. This could further complicate things, and leave you open to action by the person you’ve photographed, even if you haven’t shared the image beyond your own timeline or feed.

Check Local Laws

Occasionally, professional photography is banned in particular public places. Trafalgar Square, London’s Royal Parks, and Parliament Square are all excellent examples.

Additionally, there are spaces you can access as a member of the public, but you’ll need to check you’re allowed to take pictures. For example:

Churches
Stores
Galleries and museums
Government buildings What About Public Transport?On the whole, you can take photos for personal use at train stations. However, flash photography is prohibited. If these photos are for business purposes, you’ll need to seek permission in advance. Airports and Planes Final ThoughtsSocial Media Tags
As a general rule, no one can request a photographer to stop taking pictures, to delete them, or for a copy. However, if the photos are explicit, the person in the film has every right to make the requests we’ve just highlighted.
Not many people know this, but airports are considered private property. Therefore, limitations apply. However, you should be allowed to take personal photos inside the terminal.
If you’re taking snaps at a tube station, you won’t be allowed to use a tripod. Also, if you’re shooting for more than quarter of an hour, you’ll need to apply for a permit; the same goes for using these snaps commercially.
The Tube and Trains
If in doubt, ask someone who works there to double check.

Constructive Dismissal: a guide

If you think you’re the victim of constructive dismissal, then you’re in the right place. We’ve put together a guide to tell you exactly what constructive dismissal is, and how you can deal with the consequences of what can be a very stressful situation. Who’s to blame? What can you do if you feel forced to leave a job you love? Here’s our point-by-point guide.

What’s Constructive Dismissal?

Put simply; this is when an employee’s forced to leave their job because of their employer’s behaviour. There’s a list of issues that could qualify as bad behaviour, but you need to know exactly what could be regarded as contributing to constructive dismissal, and what doesn’t.

Who Can Claim Constructive Dismissal?

Employees who’ve served under the same employer for two years or more can make a constructive dismissal claim. This two-year timeline includes your statutory notice period.

The Explanation for Leaving Needs to be Serious

If you’ve been forced to leave your job due to any of the following reasons, you might be experiencing constructive dismissal:

Your employer refuses to pay for the work you’ve completed
Your employer took away the benefits your contract entitles you to, without explanation
You’ve brought a grievance to your employer’s attention, and they’ve refused to investigate
Your employer forced you to undertake an excessive workload
You were demoted without explanation
You weren’t provided with a safe working environment
Accepting extreme changes to your work was made compulsory. Typical examples of this include undertaking night shifts contrary to a standard 9am-5pm contract or making you work excessive hours, etc.)
Your employer condones and/or encourages bullying.

In some cases, your employer might have broken your employment contract with a series of incidents that when viewed together, make things more serious. Out of all the above options, this is the most difficult to prove.

To make a successful claim, you’ll need to provide evidence of a specific breach of contract. For example, threatening text messages, samples of your completed work, bank statements reflecting your change in pay, etc. So, before you think about bringing a constructive dismissal case, make sure you have the evidence to back your claim up.

What Constitutes a Fair Change in Work?

Your employer’s entitled to make reasonable changes to your work. For example:

Implementing something your contract explicitly talks about
Consulting you before making any changes
Making changes as a last resort, as an alternative to something much worse. i.e., laying off staff.

If You Have a Claim, What Should You Do?

Firstly, try and resolve any issues by courteously speaking to your employer. A simple discussion with your line manager might be all that’s needed to put things straight.

If there’s no improvement, and you firmly believe you’ve got grounds for a constructive dismissal case, leave your job. This might sound drastic, but it’s necessary. This is especially true if you don’t feel safe at work, or if you’re frightened to enter the office.

Unfortunately, if you stay and put up with your ill-treatment, your employer can argue you accepted their offensive conduct.

Don’t Forget Discrimination

Discrimination can occasionally play a role in this kind of claim. This also constitutes an irreparable break in your employment contract.

If you believe your mistreatment stems from one or more of the following, it might fall under the term, ‘discrimination’:

Pregnancy
Your race or ethnicity
Your marital status

Your sexuality
Your religion
Your gender
Your age
A disability you’re suffering from

The two-year limit doesn’t apply to employees who are victims of discrimination.

Is it Worth Making a Claim?

Put simply, it all depends. Stereotypically, constructive dismissal claims are hard to prove. This makes them very tricky to win.

When it comes to analysing whether it’s worth going to tribunal, weigh up how much money you’ll get if you win; this is usually a good indicator of whether the process is worth your time and effort.

Then, seek help from a professional who’ll analyse your case. They should give you a better idea of the likelihood of winning.

School exclusion policies in the dock at start of the school year

Pupil exclusions by schools have been hitting the headlines in the run up to the start of the new academic year and parents are being encouraged to find out where they stand if their children are the focus of disciplinary action at school.

Figures¹ published recently by the Department for Education show that the proportion of pupils permanently excluded from school has risen for the third year in a row, and the publishing of the latest GCSE results coincided with accusations that schools have been timing so-called ‘informal’ exclusions to improve their league table performance. Alongside, a landmark human rights case has ruled that the exclusion of an autistic pupil on the grounds of challenging behaviour is unlawful.

The case of the autistic student, known as “L” was heard by the Upper Tribunal, the court that deals with appeals against school exclusions. The judge said that a regulation under the Equality Act which allowed schools to exclude pupils for aggression was incompatible with human rights legislation, as it discriminated against pupils with autism and similar conditions.

Although schools must make reasonable adjustments to ensure disabled pupils get the right support, until this ruling they have been able to exclude autistic pupils for acting aggressively, without taking any steps to support the pupil, even if the behaviour was directly related to their autism.

The Department of Education figures¹ show that pupils with special educational needs account for around half of all permanent exclusions, with ‘physical assault against an adult’ given as the most common reason. In future, where such behaviour is related to a pupil’s condition, schools will have to demonstrate that such a decision is proportionate.

Said Miss Amy Cusworth, Partner with Rotherham Solicitors Oxley & Coward Solicitors LLP: “This ruling means that pupils with autism, ADHD and other similar conditions, where aggressive behaviour is a likely outcome, will have greater protection from school exclusion. The judgement does not mean that schools will be stopped from excluding such children on the grounds of behaviour, but in future they will have to demonstrate the steps they have taken to support the child, and how such an exclusion is proportionate in the circumstances.”

She added: “For any parent who is dealing with an exclusion, whether or not their child has a recognised special educational need, it’s important to know where they stand and how they can question a school’s decision.

“Any exclusion – temporary or permanent – can be challenged, and parents have the right to make representation to the school’s governing body, which has the power to over-rule a headteacher’s decision. Beyond that, parents can ask for an independent review, which can be done without cost to them, or they can contact the exclusions team at their local authority. For children with special needs, there is a dedicated tribunal to deal with cases.

“And if an exclusion is made on an ‘informal’ or ‘unofficial’ basis – what is sometimes known as ‘off-rolling’ – that is unlawful and the parents need to contest it with the school. This is the practice that has been highlighted in recent news reports.

“Whatever the situation, if it’s hard to get answers, or you don’t know what to make of the answers, then it’s worth getting professional advice as early as possible.”

Exclusions in England are governed by rules set out in the Education Act 2002 and can be made on disciplinary grounds alone. The rules also apply to children above or below compulsory school age, such as nursery or sixth form. Pupils may be excluded for fixed periods of up to 45 school days in a single academic year or permanently removed from the school roll. Any decision on permanent exclusion should be taken only “in response to a serious breach or persistent breaches of the school’s behaviour policy; and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school”.

¹Department for Education :Permanent and fixed-period exclusions in England: 2016 to 2017: 0.1 per cent of pupils in all schools were excluded in 2016-17, compared to 0.08 per cent in 2015-16 (Published July 2018)

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Maternity leave – your rights

Maternity leave is an important period for all working mums. It gives women an opportunity to prepare for the birth, then bond with and care for the child during the first days, weeks, and months of its life. Here, we take a look at what rights you have when it comes to organising and taking maternity leave.

Who is eligible for maternity leave?

Maternity leave is available to those classed as an employee. It is not available to those classed as ‘workers’. The distinction between the two can be difficult to define and there are a number of notable exceptions. Generally, employees are considered to be those individuals who work regularly for a fixed number of hours. The number of hours is typically determined by the employer. On the other hand, a worker can be someone who works for an agency, is employed on a zero hours contract, or only performs casual work.

These definitions of ‘employee’ and ‘worker’ are generalisations and it can be difficult to tell which of the two categories you fall into. As always, there are a number of exceptions to the rule. For instance, there are different rules and rights for those in the armed forces and police, if you work on a fishing boat and take home a share of the profits, or if you’re self-employed. If you’re unsure about your status, it may be a good idea to contact legal professionals for assistance.

What are your rights?

When it comes to maternity leave, you retain a number of fundamental rights and entitlements. You can take up to a year (52 weeks) of maternity leave and have to take a minimum of two weeks leave if you work in any environment other than a factory setting, in which case a minimum of four weeks is necessary. The leave can start any day within 11 weeks of the due date and you have the right to determine what day it does begin. In certain circumstances, such as the baby arriving early or you falling ill within four weeks of the due date, you can start maternity leave early.

Don’t believe the usual internet hype that you cannot be made redundant during maternity leave, either. If your position becomes redundant during your time off, then you will be entitled to the same considerations as anyone else in the same position, regardless of any maternity leave you may be taking at the time.

What do you need to do to get maternity leave?

In order to get maternity leave, you are supposed to inform your employer that you are pregnant at least 15 weeks before the baby is due to be born. You will need to tell them your baby’s due date, that you will be taking maternity leave, and the expected start and end date for your leave. All of this should be submitted in writing and some employers will request proof of pregnancy. Start and end dates for your maternity leave can be changed at a later time, though you will need to give advance notice of these changes.

What happens if you’re refused maternity leave?

It’s rare that an employer will refuse maternity leave if you’ve followed the correct procedures, notified them within the proper timeframe, and provided evidence of your pregnancy. If they do refuse you maternity leave, they may be guilty of maternity discrimination. You will need to ask them to justify their decision, preferably in writing, and then you should contact legal advisors as soon as possible. Your trade union may also be able to help.

Other considerations

It’s important to note that maternity leave and maternity pay are two different things, for which there are two different sets of rules and rights. Likewise, parental leave and shared parental leave are two processes that often interact with maternity leave, but are separate and distinct processes. Finally, we want to emphasise the importance of committing every step of the maternity leave process to paper. Both you and your employer should utilise written applications, requests, and responses to ensure that there is no space for confusion or exploitation further down the line.

Company Voluntary Agreements – how businesses are using them to fight landlord agreements

In recent months, there has been a growing interest in the way businesses are using a particular type of insolvency prevention procedure – known as a Company Voluntary Agreement – to reduce the amount they’re paying to landlords. Here, we explore the issue and look at the way retailers in particular are utilising this type of agreement.

What are Company Voluntary Agreements?

Company Voluntary Agreements (CVAs) are a type of arrangement used by companies with debt issues, as well as those that are facing insolvency. It’s a voluntary agreement between a business and its unsecured creditors, which provides a framework in which all or part of the debt is repaid over a fixed period of time.

Companies can arrange a CVA through an insolvency practitioner, who will negotiate the amount to be repaid and the period of time over which it will be paid. However, their proposal must be received positively by creditors who are owed a minimum of 75% of the debt. The business’s shareholders must also approve the measures by a simple majority.

How are CVAs used in the retail sector?

Over the last few years, CVAs have become a particularly popular means of reducing costs in the retail industry. The vast majority of the criticism aimed towards CVAs originates from property owners and landlords. A number of high-profile retailers, including BHS, New Look, and Jamie’s Italian, have used CVAs to drastically reduce rents while paying their other unsecured creditors in full. While the companies involved argue that the leases on their commercial properties are vastly over-valued and the only way of the business surviving is reducing rental payments, landlords argue that they’re being unfairly targeted and financially scapegoated.

The effect on landlords and proper use of CVAs

As CVA use increases, landlords are becoming increasingly frustrated that large businesses are targeting their earnings in order to cut costs. In many cases, businesses are requesting large cuts in rental costs and are threatening to leave the premises if those cuts are not made. This puts landlords in a tricky position – they either accept the terms of the CVA and receive lower rental payments, or the business terminates the lease, leaving the landlord even further out of pocket and searching for new tenants.

However, it’s not only landlords that are frustrated with the growing use of CVAs. Other retailers are bemoaning the competitive boost many organisations receive when they enter into such an agreement. In the cut-throat world of retail, the smallest reductions in expenditure can make all the difference between success and failure, and put the pressure on competitors.

The clothing chain Next is the latest business to argue that CVAs that reduce rents have provided competing businesses with an unfair advantage. They believe that companies are being rewarded for bad performance and that those organisations that have managed their financial affairs well are suffering as a result.

The future of CVAs

There can be no doubt that CVAs have been beneficial to a number of companies facing insolvency. Nor can it be said that CVAs are involved in the majority of insolvency processes – in 2017, CVAs were involved in just 1.8% of all insolvencies. However, the call for reform is growing louder and it does seem as though the system will be reassessed in the near future.

Landlords are collaborating to fight specific CVAs. Revo, an organisation focused on retail property, have written to the government asking for the matter to be looked into. Legal challenges are also being mounted against the use of CVAs in this particular way, with the majority arguing that landlords are being unfairly prejudiced against. What the future holds for CVAs will largely depend on whether legislators consider this type of use an abuse of the system and whether this abuse outweighs the benefits of CVAs to those businesses that use them in a less questionable manner.

Hosepipe bans – what’s the law?

The long, hot summer has been welcomed by the vast majority of the country, even though there are some potentially challenging side-effects to such a protracted dry spell. A number of regions around the UK have had a hosepipe ban already put in place and more still are facing the possibility of having to watch what they water. Here, we take a look at what the legal implications of such bans are, and how they could affect you.

What is a hosepipe ban?

A hosepipe ban can be put in place by any organisation responsible for water provision to households across the UK. As different regions are supplied by different providers, this means that one area of the country can have a ban in place, while others are free to continue using their hoses without restrictions.

The ban itself covers ‘non-essential’ water use. This includes using hosepipes to water gardens, wash cars, fill swimming pools, fountains, or ponds, and clean windows, pathways, and outdoor decking. The water provider can extend the ban to all of these activities, or limit a certain few. On announcing the ban, water providers should detail which activities are banned and the precise time at which the ban will come into effect.

What can you use?

Though watering the garden and washing the car with a hosepipe are banned, homeowners can continue performing these tasks, as long as they do so without utilising a hose. For instance, gardeners can tend to their garden with a watering can filled from a short hose, or wash their car using a bucket and sponge.

With hosepipe bans, the emphasis is on reducing water consumption to ensure that demand can be met. This means limiting waste and reducing the amount of water used for non-essential purposes. Though hosepipes are useful, they are an inefficient means of water delivery and their use typically results in large quantities of water being wasted.

What’s the punishment for breaking the ban?

Hosepipe bans are legally enforceable and breach of the ban conditions can carry hefty penalties. Those caught breaking the ban can be fined up to £1000. However, the likelihood of being fined for a breach varies from area to area, depending on the attitude of the local authorities and water providers.

The recent hosepipe ban in Northern Ireland saw approximately 140 households being reported for breaking the hosepipe ban, all of which were approached by NI Water in order to discuss the importance of the ban, why it’s in force, and why water rationing is necessary. No further action was taken against these 140 households, though there is no guarantee that this softer approach will be pursued in other areas of the UK.

Why are hosepipe bans put in place?

Hosepipe bans are put in place during periods in which low rainfall, dry conditions, or other natural or man-made phenomenon threaten water reserves. Hosepipe bans are not necessarily an indication that water reserves are dangerously low and can be used as a precaution to ensure that sufficient reserves exist to see the local area through a dry period. The bans are a means of regulating non-essential water usage and households can continue to utilise water for more essential purposes as they see fit.

That being said, water providers can request that homeowners begin to consider other types of water usage and attempt to reduce them. For instance, some companies may suggest that homeowners begin taking short showers and try to limit the number of baths they take – though this advice is not legally enforceable.

The legislation

Hosepipe bans, as well as the punishments associated with breaching any ban, are covered by the Flood and Water Management Act 2010. This is an extension of previous water management legislation and gives utility companies the power to put bans in place and sets out the punishment for any breach of the ban.

How are businesses coping?

Now that GDPR has been in force for a number of months, we thought it was time to take a look at how it’s affecting businesses. Are companies struggling to keep up? What impact have the regulations had on digital services? Are we likely to see organisations punished with large fines in the future? Here, we take a look at how businesses are coping with GDPR and what challenges they face.

Struggling to cope with data requests

With the introduction of GDPR, businesses have found themselves struggling to keep up with a large increase in data requests being filed. Businesses such as Facebook, Netflix, and Marriott are reportedly overwhelmed by the incredible number of requests they’re faced with, and the administrative burden is thought to be huge. This situation is exacerbated by the concerted efforts of online privacy activists, who are creating apps and websites that make it easier to file a request. The Cambridge Analytica scandal has also thrown a serious amount of fuel on the fire and encouraged greater quantities of people to challenge big businesses’ data collection practices.

Searching for that data

Businesses are also struggling to locate and identify all the personal data that they’ve retained over the years. Customers now communicate with businesses over numerous different platforms, in many different ways, with all the data collected stored in a largely unorganised manner. All parts of a business collect customer data, meaning that the information harvested is often siloed and stored throughout the organisation in different places and ways. Retrieving this data is proving extremely expensive, both financially, and in the amount of time being dedicated to data collation.

Frantic marketing messages

As you’ve probably noticed, marketing departments have been hit hard by GDPR and are frantically attempting to contact their customers in an effort to update their consent agreements. Email inboxes have been flooded with messages requesting users renew their consent to be contacted, and businesses are concerned that their marketing base could be drastically reduced by new GDPR regulations.

Slim pickings from some companies

Some businesses have decided to reduce their exposure to potential GDPR punishments altogether by temporarily suspending services or cutting back the products they offer. For instance, USA Today are offering European online readers a heavily edited, ad-free version of their content, while the LA Times and Chicago Tribune online experiences are now unavailable to European users.

This approach has been pursued predominately by organisations operating outside of the EU, who may not have been as prepared for the introduction of GDPR as their European counterparts. This ‘not worth the risk’ approach demonstrates just how seriously organisations are taking GDPR and its hefty financial penalties.

Loss of important records

A number of organisations were also forced to delete large swathes of important customer data before and after the GDPR deadline, in order to ensure that they didn’t fall foul of the regulations. The TV and movie review app, Stardust, deleted all EU-based users’ records, as did unroll.me – an email filter app. However, it is worth noting that the vast majority of organisations taking these drastic steps are smaller businesses that simply don’t have the resources to prepare for GDPR or who are unable to build new systems that comply with the regulations.

The GDPR awareness effect

The introduction of GDPR seems to have had an impact on public awareness of digital privacy issues. This in turn has affected those organisations that have developed a business model orientated towards personal data collection. With the implementation of GDPR, companies like Facebook have experienced drops in membership figures, as users become increasingly aware of potentially troubling privacy policies.

It’s difficult to determine whether lower membership figures are entirely due to GDPR (Facebook were still suffering from the fallout of the Cambridge Analytica scandal at the time of writing), but the policy does seem to be impacting on these types of business.

Pass me the invisible ink James…

Mention spies and you may think of James Bond scaling a building in the dead of night, but when it comes to commercial espionage it’s more likely to be Jim in product development, who has a new job with a competitor, or a cyber specialist sitting a thousand miles away, acting on commission to hack into your server.

And for any business thinking they don’t have any secrets to steal, the target is as likely to be your business plan or customer database, as the Coca Cola secret recipe or the physics behind a new technology.

The protection of trade secrets is an international issue and new legislation has come into force in the UK, which marks an important shift in emphasis, placing the burden on business to prove they protected their corporate intelligence.

The Trade Secrets (Enforcement, etc) Regulations 2018 came into force in June, implementing the EU Trade Secrets Directive, which is designed to harmonise the protection of confidential corporate information across the Eurozone. In the UK, trade secrets have previously been protected through case law, and the new legislation will sit alongside rather than replace this.

The big difference is that the new legislation offers a statutory definition of what constitutes a trade secret. It describes it as being information that is secret, has commercial value because it is secret, and that reasonable steps have been taken to keep it secret.

Said dispute resolution law expert Miss Amy Cusworth of Oxley & Coward Solicitors LLP, Rotherham: “This is a narrower definition than previously, where it was about showing that information was recognisably confidential and was imparted in circumstances that a reasonable person would recognise as being in confidence. Now it’s about proving its inherently secret nature and how it has been protected.

“We will have to wait and see how the courts interpret the Directive’s requirement for ‘reasonable steps’ to be taken to protect information, but what is clear is that businesses will have to review all aspects of confidentiality across the company, and their processes with employees, suppliers and customers. If there are outdated or few procedures in place, then it’s time to get this high on the agenda, ideally as part of an overall review of IP.”

Amy Cusworth added: “The review should include non-disclosure agreements and confidentiality provisions in both supplier and client contracts. Restricting access to information internally is also important; ideally trade secrets should be stored using encryption and password protection, with clear protocols as to how such information may be used. Alongside, some simple steps such as applying a ‘confidential’ watermark to relevant documents can help shift the culture towards appreciating the value of such information.”

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Landlords must check they hit the spot with deposits

Claims for incorrectly handled property rental deposits are soaring and landlords should be alert to the danger and ensure they or their agents are complying with the legal requirements, if they want to avoid high penalties.

According to figures from insurers, the number of claims relating to deposits peaked at 25% of all professional indemnity claims made by estate and letting agents in the first quarter of this year, up from just 3% last year[1]. The claims most often relate to a landlord lodging a deposit late or failing to provide the correct information to the tenant about the terms and the deposit scheme used.

Under the Housing Act 2004, any deposit must be held by the landlord in a registered deposit protection scheme and the tenant must be given specific details of the deposit protection scheme used and details about how the scheme works within 30 days.

If a court rules that a landlord has failed in their duty, it can impose fines of up to three times the value of the deposit, which must be paid within 14 days of the court order.

Explained property legal expert Amy Cusworth of solicitors Oxley & Coward Solicitors LLP in Rotherham: “It’s the landlord who will find themselves subject to the county court order. They may be able to bring a claim against the letting agent, if there is one involved, who in turn will claim on their professional indemnity insurance. It’s a costly business and bad in reputational terms for all concerned.”

She added: “The legislation has been in place for a long time, but we see both agents and landlords getting it wrong still. Where landlords have a big property portfolio, they are more likely to have the right processes in place. For small-scale landlords, or the accidental ones who may have ended up renting out their home while working elsewhere, it’s worth adopting some of the practices of the big boys as it’s no defence to say you didn’t know or had left it to your agent.

“That includes taking some time to understand the law as it affects you as a landlord and having checklists for each stage of the tenancy. Then you need to make sure they are used each time, whether you are doing it yourself or checking your agency have acted properly on your behalf. In the worst-case scenario, if you haven’t used a deposit scheme when you should have, the court can rule that a tenant does not have to leave the property when the tenancy ends.”

The prescribed information that must be provided to the tenant includes:

the address of the rented property
how much deposit you’ve paid
how the deposit is protected
the name and contact details of the tenancy deposit protection (TDP) scheme and its dispute resolution service
their (or the letting agency’s) name and contact details
the name and contact details of any third party that’s paid the deposit
why they would keep some or all of the deposit
how to apply to get the deposit back
what to do if you can’t get hold of the landlord at the end of the tenancy
what to do if there’s a dispute over the deposit

This is not legal advice; it is intended to provide information of general interest about current legal issues.

[1] Claims data compiled by DAC Beachcroft.

Key Dates for Agriculture

As a reminder for our agricultural clients, below are some of the impending key dates in your sector:

1^st August 2018	If the Rural Payments Agency have granted you a derogation then you may be able to cut or trim hedges throughout August and sown oilseed rape or temporary grassland – remember to check the specific wording of your derogation before acting.
	The beginning of the closed period for applying organic manure with a high readily available nitrogen content (for example, slurry) to tillage land on shallow or sandy soils (except where crops will be sown before 15^th September 2018).
20^th August 2018	Ecological Focus Area crops to be established by this date. These must be retained until at least 14^th October 2018.
1^st September 2018	You can now cut or trim hedges without a derogation.
	The start of the closed period for applying organic manure with a high readily available nitrogen content (for example, slurry) to grassland on shallow or sandy soils.
	The start of the closed period for applying manufactured nitrogen fertilisers to tillage land.

Remember, if you do not adhere to the cross compliance rules it could affect your payment under the Basic Payment Scheme.

More detailed information can be found on the Cross Compliance pages at the www.gov.uk website.

If we can be of any assistance, please get in touch.

New report warns of looming incapacity crisis

99% of people in the Yorkshire and the Humber region leave important health and welfare decisions to chance

By 2025, more than 13 million people who are at risk of mental incapacity will not be prepared

75% would like a family member to make medical and care decisions on their behalf, in the event of mental incapacity

75% haven’t discussed end of life medical and care wishes

35% admit to having made no provisions at all, such as a will, LPA, pension or funeral plan
Coalition of partners join forces to warn of ‘incapacity crisis’ led by SFE, including Baroness Ilora Finlay, Alzheimer’s Society, Dying Matters, Age UK, Anchor, and SOLLA

A new report from SFE (Solicitors for the Elderly) and independent think tank, Centre for Future Studies, reveals the UK is leaving medical and care preferences to chance. The report looks at the ever-increasing number of people living with dementia which, combined with the failure to plan ahead for mental incapacity, exposes a looming crisis.

The study found 99% of people in Yorkshire and the Humber have not made necessary provisions, should they lose capacity from conditions like dementia. A further 35% admit to having made no provisions at all for later life, including a will, pension, funeral plan or LPA.

In response, a coalition of organisations, led by SFE – the specialist organisation that connects older and vulnerable clients with legal experts in older client law – are joining forces to encourage people to tackle the taboos around end of life planning, in order to prevent an incapacity crisis.

The research found that 77% of people in Yorkshire and the Humber are worried about dementia and losing the ability to make decisions for themselves, but 75% have not spoken about, or even considered, personal medical and care end of life decisions.

Planning ahead is surrounded by worrying misconceptions, especially in relation to health and care preferences.

A staggering 68% of people in Yorkshire and the Humber region incorrectly believe that their next of kin can specify what they would have wanted if they are no longer able to and 65% believe their spouse has the power to do so. 75% of the people in Yorkshire and the Humber would like a family member to make medical and care decisions on their behalf, but this is not the case. These decisions are out of a loved ones’ hands if a registered health and welfare LPA is not in place.

57% believe that being on the NHS organ donor register ensures that organs are donated following death, however this is not the case. It’s crucial for people to discuss organ donation preferences with family and friends, otherwise it may not happen.

Without the necessary provisions in place, potential life-changing medical and care decisions are taken away from loved ones.

There are currently 928,000 Health and Welfare LPAs registered with the Office of the Public Guardian (OPG) across England and Wales, compared to the 12.8 million people over the age of 65 who run the risk of developing dementia – a difference of nearly 93%.

The forecast shows the disparity will continue, leaving millions in limbo. By 2025, it’s calculated that 15.2 million people will be at risk of mental incapacity and it’s estimated that 2.2 million health and welfare LPAs will be in place. This shows that the health and welfare wishes of 13 million people will not be taken into account.

Only 1% of people in Yorkshire and the Humber surveyed by SFE have a health and welfare LPA in place.

SFE is urging the nation to act now to avoid this incapacity crisis by planning ahead in case of mental incapacity.

It is crucial to have a conversation with loved ones in order to make specific medical and care wishes known – such as, where you are cared for, whether you wish to be an organ donor and whether or not you would want to be resuscitated – otherwise there is a risk your preferences are not taken into account.

The campaign calls on people to act now and start a conversation with loved ones about end of life topics to remove the stigma surrounding the discussion.

Lakshmi Turner, Chief Executive of SFE, said:

“Most of us do not like thinking about, let alone talking about, death, disability or disease, despite the fact that it touches all our lives – but it is essential that we do so.

“Whilst it’s great that more and more of us are putting wills in place and establishing plans for finances and assets, far too few of us are planning ahead for our health and care needs and wishes, leaving this to chance.

“It’s time to set the record straight. Planning ahead by talking to family or friends shouldn’t be seen as doom and gloom, it’s about having a positive conversation about welfare, empowering your loved ones and making the decision-making process easier for everyone.”

Professor Ilora, the Baroness Finlay, states:

“With decades of experience working and campaigning around palliative medicine, the low numbers of health and welfare lasting power of attorneys is of concern.

“When a person loses capacity to take decisions, it is sad to see families and professionals struggling to try to determine what a person would have wanted. Delays and distress can be avoided by appointing someone to speak for you when you can no longer speak up for yourself.

“Discussing medical and care wishes ahead of time ensures that care can respect an individual’s wishes, with the respect they deserve – even when it comes to fulfilling wishes after death, such as organ donation.

“It’s important to have an open discussion about future illnesses and possible incapacity. I urge the millions of people who haven’t given loved ones the opportunity to listen, to act now.”

Jeremy Hughes CBE, Chief Executive of Alzheimer’s Society

“We welcome this initiative. Lasting powers of attorney for health and welfare too often get overlooked.

“People with dementia have the right to make choices about their care, just like anyone else. Making someone they trust their attorney for health and welfare is one of the ways people can do this. A health and welfare LPA provides reassurance to them and the act of creating one can start useful conversations about the future with family and friends.”

To download the report, a short video and infographics, visit https://sfe.legal/the-incapacity-crisis-a-nation-unprepared/

Choose an expert – to make sure your LPA is robust and covers all the things you need it to, seek expert advice from an SFE lawyer.

Keep it down over there! – Dealing with noisy neighbours during the summer

The first sign of summer weather sends everyone to the shops to pick up barbecues, outdoor entertainment, and supplies for parties that make the most of those late, lazy summer evenings. Nobody wants to be the killjoy that puts a stop to their neighbour’s summer celebrations, but if things get out of hand, what rights do you have? Here’s a quick guide to dealing with noisy neighbours over the summer.

Avoid direct confrontation

As angry as you may get, a doorstep confrontation situation at 2am has a high chance of escalating, especially if alcohol is involved. The best way to deal with a one-off situation is to have a calm conversation with them the next day. Avoid passive aggressive notes through the door, they are more likely to have a detrimental effect rather than providing a solution.

Choose a non-aggressive approach

Rather than reprimanding your neighbour over a past event, try and turn it around and ask them to let you know ahead of time if they are planning to have a party in future. Even better, ask for an invitation, and build a better relationship with them so they will be more considerate of you in future.

Call in reinforcements

If you’re not the only person who is having problems, then it may be time to ask other neighbours to back you up if you decide to approach your local noise abatement officer or council department. A group of people making the same complaint are more likely to be listened to than an individual.

Use some tech to record the noise

The council can only respond to a noisy neighbour complaint if there is sufficient evidence that the person is causing a disturbance. Use a recording device to get some evidence, or if there is a problem with rowdy behaviour then take video evidence. Bear in mind, though, that under the Human Rights legislation, individuals do have a right to privacy. If you are planning on getting video evidence of a problem neighbour, then talk to a solicitor first to make sure you don’t end up on the wrong side of the law yourself by violating an individual’s privacy rights.

Kicking up a stink

Overpowering smells can be regarded as a nuisance, and not everyone loves the smell of a summer BBQ, especially if their house is filling with fumes from the neighbour’s cook-out next door. It’s especially unpleasant if a person has a respiratory condition such as asthma, which can be triggered by smoke. If your neighbour is firing up the barby every day, then you may have a case to take to the local council.

Children’s playtime

Kids love playing in the garden during the summer, and if the whole family is outside having a barbeque then there’s a good chance the kids are going to get excited. If they do get noisy then be patient – we were all kids once! However, if it carries on incessantly then it may be time to have a quiet word with the parents in the first instance.

Light nuisances

If a security light is shining directly into your property then it can be regarded as an artificial light nuisance. Again, talking to the neighbour direct in the first instance is the preferable way of resolving the situation.

If you are still finding that your neighbour’s summertime parties are causing a problem and disturbing your peace, talk to a legal expert who will be able to advise you on what course of action to take.

Easements and rights of way – Get off my land! Who can access your property if you have a footpath or right of way running through it

If you’ve discovered an easement running through your property, you may be wondering who has access and who can pass over your land. There are a number of different types of easement, each of which allows for different usage of the land. Here, we take a look at each of the different forms and explain who is provided access in each case.

What is an easement?

At its most basic, an easement is ‘the right to use another person’s land for a stated purpose.’ The easement could refer to an entire property, or just a part of it, and the ‘stated purpose’ could refer to as diverse a range of activities as laying water pipes, accessing an otherwise unaccessible property, or joining two separated properties. An easement is granted by one property owner to another, and typically means the original landowner can no longer build on or around the easement, or restrict access to it.

What is right of way?

A right of way is a type of easement. Normally a right of way easement is agreed upon by adjoining landowners. This may be because it’s necessary to cross one property in order to reach the other, the easement allows for a far more convenient point of access, or it allows one property owner to cross another’s land in order to reach public land. For instance, an easement may be granted by one property owner to another, in order to facilitate access to historically important public woodland or a river used for fishing. It’s also important to consider the public right of way – known as ‘the right to roam.’ This is usually granted for one of two reasons. Either the landowner has given permission, or the local community has traditionally used the right of way for many years.

Types of easement

There are various different types of easement, each of which describes the set of circumstances that necessitated the easement. They include:

Express grant – This is typically enshrined in the deeds to a property. It usually occurs when an individual sells part of their property but wants to keep some rights over the sold land. That may include the right of way or the ability to maintain utility infrastructure.
Prescription – This comes into effect when an individual has been openly using land in a certain way for over 20 years. If they can prove that this is the case, an easement for continued use may be granted.
Implied grant (easements of necessity) – This also typically occurs when part of a property is sold. However, rather than being written into the deeds to the property, its existence is implied by law. For instance, if the land that has been sold is the only means of accessing the land that has been retained, an easement of necessity exists.

Who has access to easements?

When it comes to private easements and rights of ways, only those that are legitimately using the easement for its intended purpose (e.g. for general access or to maintain utility infrastructure), should be utilising the right of way. However, ‘right to roam’ easements are open to the general public and cannot be restricted in any way, shape, or form.

Conclusion

When it comes to easements, there are two main distinctions to make. Public, ‘right to roam’ easements permit any member of the general public to cross the land. Private, right of way easements restrict the right of access to a small number of people. In the vast majority of cases, this agreement will exist between two property owners. However, it’s also possible for the agreement to exist between a landowner and a business.

If you have access points or easements on your property and you’re not sure what rights you have to police access (either under public or private easement legislation) talk to a solicitor with expertise in property law.

Heir Hunters – Don’t let the state get your estate

Every year, thousands of people die intestate or without a will. That means they haven’t left any clear guidelines as to how they want their estate divided up among their beneficiaries. The numbers are incredible too, with around 70% of the UK population yet to get their affairs in order and create a will.

It’s rare that a person dies without at least one living relative who, if they are the only direct heir, could inherit everything. If no heir is found then the estate will (eventually) go to the Crown. However, there are some knights in shining armour out there who, for a fee, will make sure you get your rightful inheritance – even if you don’t know about it. They’re called ‘Heir Hunters’, and they’re very, very good at research!

What are Heir Hunters?

These full-time genealogists/family investigators hunt through government records for names of people who have died intestate, and with no obvious living relative (at least, none that can be easily traced).

Every Thursday HM Treasury releases a list of names, dates of birth, and the place and date of death of thousands of people. With this basic information, they can then scour the family trees and start to trace anyone who may be related to the deceased. This includes distant cousins or even lost siblings. The work is painstaking, detailed and sometimes incredibly complicated, especially if family records have been interrupted by world wars, for example, or if relatives have emigrated overseas.

Fortunately, though, they have plenty of time to do this research, as there is a 12-year time limit before the Crown (or the Duchies of Cornwall and Lancaster) can claim the estate as their own. Heir hunters are methodical and dig deep into the family records to find anyone who may be entitled to a share of their dead relative’s estate.

How much do they charge?

There is a fee involved, as there is a lot of time and effort involved in tracing a family which can include frequent trips up and down motorways, or even flights abroad. The usual fee is between 10% and 30% (plus VAT), or alternatively some hunters charge a time-based fee that depends on how long it takes to track down details relating to the case.

You’re not the only one

You do have to be realistic about the amount of an estate you could receive (after fees), as it’s statistically unlikely you’ll be the sole beneficiary. It can also be a case that initially you may inherit everything, but then other relatives are traced. If you’ve already spent the inheritance then you could be seriously out of pocket if you then have to pay the other relatives a share of the original estate value. In this instance it may be wise to take out what is known as ‘Missing Beneficiary Indemnity’ insurance.

Can’t I do it myself?

It is possible to do your own ‘heir hunting’ but bear in mind that specialist probate and inheritance experts have the resources at their fingertips to get the job done quickly. You’ll need to have some hard evidence of the validity of your claim, such as a detailed family tree (obviously including the name of the deceased!). It takes a long time to trace documents that could make all the difference to ratifying a claim, so it is usually best to hand the job over to the experts.

If you think you may be the rightful heir of an unknown fortune, it’s well worth contacting specialist heir hunters to see if you are entitled to a share in your long-lost great uncle’s estate!

The fight against discrimination for gender-fluid and transgender workers

The law makes it perfectly clear that discrimination based on gender is not only unacceptable, but illegal. But what happens if you’re gender-fluid, or are transgender? Since the 1990s there has been legislation in place to help protect those who are transgender, including protection against discrimination in the workplace.

A series of recent cases (particularly in the US) have highlighted the fact that no matter how much legislation is passed and how vocally employers claim that they are aware of the needs of gender-fluid and trans people, there is still a great deal to be done to remove some of the prejudice and barriers that still remain in place.

The law’s answer to protecting Transgender rights

In 2004, the Gender Recognition Act was introduced to allow people to change their legal gender. This allows those with what is commonly referred to as gender dysphoria legal recognition that is appropriate to their acquired gender, as opposed to their gender at birth. This means transgender people can apply for a new birth certificate in their acquired sex, giving them legal standing. It effectively means that a transgender person born as a man could be legally regarded as a woman, and vice versa.

Those applying for Gender Recognition Certificates under the legislation still have to jump through some serious hoops, though, including having transitioned for two years before a certificate is granted.

In 2017 the Scottish government updated the GRA, claiming the Act was ‘outdated and intrusive’, but revisions are still to be considered in the UK. That means transgender people must still go through an extensive process to be legally recognised as the gender they identify with.

The Sex Discrimination Act also makes it illegal to discriminate against someone on the basis of anatomical sex in the workplace, legislation that was added to by the Sex Discrimination (Gender Reassignment) Regulations in 1999. The Equality Act 2010 also tacked on some provisos, classifying gender reassignment as a ‘protected characteristic’. This still seems somewhat outdated, and campaigners are calling for a ‘gender identity’ category to provide clearer guidelines, especially when it comes to people who do not identify as transgender or transsexual, but are instead regarded as ‘gender-fluid’.

It is this confusion as to the terminology and exactly which groups are protected in law that has led to several stumbles by employers and service providers when it comes to catering to the needs of transgender and gender fluid people.

What is unlawful discrimination?

The law makes it very clear – discrimination against transgender and gender-fluid people is illegal. Unlawful discrimination includes:

‘Outing’ someone as transgender without their permission
Putting in occupational requirements that prevent transsexual or gender-fluid people from fulfilling the job based solely on their orientation
Harassment that includes violating the dignity of another person or intimidating, degrading or humiliating them in any way
Treating transgender workers in a less favourable way or generally discriminate against someone undergoing or who has undergone gender reassignment, or who identifies as gender-fluid or asexual.

In short, the gender that a person identifies with should have absolutely no bearing on how they are treated as an employee, or as a customer. From being able to wear clothes that are appropriate to their chosen gender through to using the toilet or bathroom that is applicable to their expressed gender identity are all part of the process. Employers must realise that the days of just catering to ‘men’ and ‘women’ are over, and that identity now includes a much more diverse range of gender definitions.

If you are transgender or gender-fluid and feel that your employer is discriminating against you based purely on your gender identity, contact a solicitor or legal representative today.

Conveyancing : leasehold property

To make your home your castle, be sure who owns the drawbridge….

By : Property law expert/conveyancing expert Dawn Cherry of Oxley & Coward Solicitors LLP

The Government has announced plans to tackle unfair leaseholder arrangements on new build properties, but in the meantime, as the Spring housing market gets into full swing, it’s worth understanding the difference between freehold and leasehold property.

Increasing property prices and high population densities have seen a big increase in the number of leasehold properties across the country, as houses are split into flats and new apartment blocks are built, so there are now 1.4 million leasehold houses across England.

And while leasehold arrangements are generally seen as a simple route to managing multiple occupancy buildings, over the past twenty years there has been a big increase in the number of houses being sold by developers on a leasehold basis. These sales have seen ground rents being set at much higher levels than the ‘peppercorn’ arrangements that were typical previously, and with scheduled increases. In the worst examples, leases include terms to allow the ground rent to double every ten years.

The new measures announced by the Government will target such practices, including a ban on leaseholds for almost all new build houses, and changes will also be made so that ground rents on new long leases – for both houses and flats – are set to zero. The government say that it will also make it cheaper and easier for existing leaseholders to buy-out their freehold, and that there will be routes to redress for those facing the most onerous terms.

We must wait for the detail and timetable for the introduction of these changes, which are anticipated to happen during 2018, but in the meantime, whether buyer or seller, it is worth being prepared by understanding the basis on which a property is being sold. For prospective buyers, knowing the right questions to ask could save a lot of wasted time and resources. And for sellers, it can ease a sale if you pre-empt any concerns and know the answers to the questions you may be asked.

What form of ownership?

It’s important to check exactly what form the ownership takes, and then ask the right questions. If it’s freehold, you will own the property and the land it sits on, but there may be other responsibilities that are not so obvious, such as contributing towards maintenance of a private shared access road.

If it’s a shared freehold, then you will own your personal space in the property, and generally a share of the land and the shared spaces. Any maintenance is likely to be subject to agreement between all the freeholders, and the cost shared between everyone.

If it is leasehold, then you will be buying the right to live in the property for the remaining duration of the lease, with the land, the structure of the building and shared spaces owned by the freeholder, who may be an individual landlord or a property management company. They will hold the buildings insurance and will consult with leaseholders about any works that are required, collecting service charges from each leaseholder to pay for all maintenance and managing such work. The owner of a leasehold property is effectively a tenant in a very long term rental, having to pay an annual ground rent and ask for consent to make any changes to the property.

It’s a lease, so how long does it have to run?

Leases of between 99 and 999 years are commonly granted and generally the value of a property will reduce as the lease gets closer to the end, but don’t expect to snap up a bargain if you’re looking for a mortgage as lenders are unlikely to make a loan on a property with anything less than 25 years left to run. If a property has only a short time left on the lease, you can ask the seller to seek an extension, but expect to pay for the benefit. A lease extension can be requested at any time by a leaseholder.

How much is the ground rent?

Normally ground rent will apply only if it’s a leasehold property. Ground rent can be a fixed charge or one that will change over time, so check out how much is being paid currently, but look through the small print as well, to be sure there are no big increases on the way. If any escalation is written in, then it should not allow for a rise that is more than the retail price index. Again, if you are seeking a mortgage, a lender will be looking to see affordability not just in the headline purchase price, but also in the ongoing costs of ground rent and the service charges.

How much are the service charges?

Service charges can strike fear in the hearts of leaseholders, even when they have very deep pockets, as all work is likely to be relative to the size and standing of the overall building. Be quick to ask for evidence of the service charge budget and the accounts for the past three years and don’t be afraid to ask around about the freeholder. The agent may assure you it’s a big property management company with the right infrastructure, but if research shows they have a poor reputation in getting work done, or in the amounts being charged on, you’ll be glad you checked.

Are repairs and maintenance up to date?

Take a good look at how well things are maintained as you view the property and then check it out against those service charge accounts you’ve asked for. If everywhere is looking a bit run down, there’s no evidence of regular work being done in the accounts, and there’s very little being held in the pot for future works, you can expect a big bill, or an increasingly rundown environment. A survey is just as important when buying a flat as when buying a house. And importantly, be clear about the proportion you must contribute.

And finally, for the seller, it’s always a good idea to get your ‘house in order’ by tackling paperwork before the sale board goes up. There are forms requiring detailed information about the property itself and one covering all the fixtures and fittings. If it’s a leasehold property you will have to complete one covering details around the lease such as the rent, service charges, insurance and future work. By working with your lawyer in advance to prepare all the forms that will be required, you’ll be well prepared to answer all the questions your potential buyer may have for you.

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

What does intestate mean for you?

October 2014 saw the biggest changes in probate law’s history come into effect. While the overhaul meant no real difference to those with minimal assets, for the partners of those who died without making a will and who have more assets, it meant significant change.

In the cases where a Will is involved, the deceased’s Executors have the legal power to distribute their estate according to the deceased’s instructions. However, in the case of intestacy, the landscape is vastly more complicated.

Who can Inherit?

Under the rules of Intestacy, only certain individuals can automatically inherit the deceased’s estate. These include:

Husbands, wives and civil partners
Children
Parents.

However, the automatic inheritance only takes place if the deceased’s estate totals less than £250,000. If the estate is more than that sum, the rules change.

Applying for a Grant of Probate

Without a Will and in cases where the deceased was unmarried, the law dictates that there is no legal representative in place to deal with his or her affairs. However, individuals can apply to become recognised as the deceased’s Personal Representative, by applying to the Probate Registry. If successful, the individual will be appointed as the Personal Representative.

As part of the process, the applicant must inform the Inland Revenue whether Inheritance Tax is owed, which must be paid six months after the deceased’s day of death. In addition, the applicant must also prove that they have some entitlement to becoming a Personal Representative, before a Grant of Probate is made. As a result, this can be a lengthy process, taking anywhere from a minimum of three weeks, to several months.

Intestacy for Married Couples

Where the deceased was married but has died without leaving a Will, the surviving spouse will inherit the entire estate. While this is beneficial to the spouse, it eliminates any claims from other relatives, including parents. Should the couple have children, the surviving spouse will automatically inherit the first £250,000 of the estate and have the legal right to half of whatever remains. The unclaimed half is then inherited by the children, although they cannot access it until they are 18 years old.

Intestacy for Unmarried Couples

For an unmarried couple with no children, the outlook is significantly bleaker for the surviving partner. In instances such as these, the surviving party has no entitlement to the deceased’s estate, with it being immediately inherited by blood relatives, such as parents, brothers and sisters and nieces and nephews.

The term ‘common-law partner’ has no bearing under probate law. Should the deceased have had a child or children from a previous relationship, the inheritance goes automatically to them – again, leaving the surviving partner with no claim to the estate, whatsoever.

‘Common-law’ partnerships are not recognised under probate law, irrespective of how long the couple may have lived together. However, spouses in civil partnerships assume the same rights as those who are married.

Bona Vacantia

In the event that there are no surviving blood-relatives to inherit, the estate becomes part of a process, known as ‘bona vacantia’. This means that the deceased’s estate is claimed by the Crown. While the Crown can grant shares from the estate to those who can prove they have an entitlement, it is under no obligation to do so once bona vacantia has been declared.

Discussing and deciding what will happen to your money, personal effects and assets isn’t a conversation that many couples tend to enjoy. However, to avoid the unpleasant sides of intestacy, it’s a conversation worth having. The best advice is to seek the services of a professional probate solicitor, who will be able to inform you of the best courses of action available to you.

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Employment law updates

2017 was a busy year in the world of Employment Law. Among the legal headlines were the removal of employment fees and the beginning of what was to become a national consultation on the pay gap between men and women.

However, the changes aren’t over for employers and HR professionals: with March 29^th 2019 signalling the UK’s separation from the EU, 2018 looks set to be a year of significant change, particularly where Employment Law is concerned. Let’s take a look at the main events you might want to put in your calendar.

April

Marking the end of the old financial year and the start of the new, it seems appropriate that the topic of tax will take the spotlight this month. April will see the government making changes to the way termination payments are taxed, including safeguarding the first £30,000 against income tax and National Insurance contributions. This will also be the month in which the first reports detailing the pay gap between the sexes must be submitted.

April also heralds the withdrawal of Employment Allowance for a year from any employers who are found to have employed illegal workers.

In addition, the Fit for Work assessment service will be scrapped at the end of March, as well as overhauling its current fit note scheme – exact details as to who, other than Doctors, will hold certification powers in the future is still unclear.

May

The big one for May will be the government rolling out the EU-approved General Data Protection Regulation laws. Among the many new protocols will be the right for individuals to be informed if their data has been compromised and the right for them to have their information deleted from search engines.

June

This is the month in which the EU’s Trade Secrets Directive comes into play, giving greater protection to Intellectual Property Rights. For businesses and individuals, this will mean greater recourse in the event that trade secrets are misappropriated, especially by a member of staff.

Other Key Events in 2018

While it’s hard to see beyond the first months of 2018, there are further changes to Employment Law expected, although their absolute dates remain yet to be confirmed. However, if you’re an employer or an HR professional, these are the upcoming key events to keep an eye out for:

Grandparental Leave

A hot topic since Parental Leave was introduced in 2015, Grandparental Leave will see parents able to assign part of their maternity or family leave to grandparents, allowing them to return to work more quickly. In addition, the move is hoped to encourage grandparents to remain in work, rather than having to leave their jobs in order to help their children with childcare.

Payment for Sleep-In Shifts

Towards the end of 2018, the clock will be ticking fast for employers who have not yet chased up their obligations to the Social Care Compliance Scheme. Launched in 2017, the scheme gave employers until 2019 to identify and pay what they owe to workers who may have been paid less than the minimum wage for sleep-in shifts. Once the deadline has expired, employers will have three months in which to make the outstanding payments, or face legal action.

Brexit

Although this doesn’t come into effect until the third month of 2019, employers will be watching the continued negotiations regarding Britain’s withdrawal from the European Union. While the Settled Status agreement seems to have gained some ground, the main issue for employers is likely to be how the legislation for immigrant workers will change.

The anticipated date for review of the rules will be in 2021, which gives businesses three years in which to begin recruiting and try and stay ahead of the constantly-shifting Brexit sands.

2018 looks to be an important year for those who have any dealing with Employment Law. While the short-term changes are well worth investigating, the long-term plans are the ones that are set to have the greatest effects.

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Dealing with employee theft

According to a poll commissioned by office-furniture supplier Kit Out My Office, more than two-thirds of UK office workers have admitted to stealing from their employers and colleagues at some time during their careers. With the cost of stolen items averaging at £12.50 and an estimated 15million workers having confessed to employee theft, the cost to UK employers adds up to a whopping £190million each year. For employers, dealing with employee theft can be a difficult process. If you suspect that one of your workers is stealing from your business, what should you do?

Suspicion vs Facts

Theft of any sort is a serious accusation to make. If, as an employer, you suspect an employee of theft then obtaining evidence is a crucial part of the procedure. Evidence may prove your suspicions to be wrong or they may prove them to be right. However, making an accusation of employee theft without substantial proof can leave you open for litigation. Suspicion is one thing. Solid facts are another.

Conducting an Investigation

Many employers are unaware of the fact that they have a legal right to launch an investigation should they suspect an employee of stealing. The investigation must be seen to be fair and based on evidence alone. Should the case reach an Employment Tribunal or result in the employee’s dismissal, the presiding judge will need to see a demonstration of fairness and impartiality.

The first step is to appoint an investigator. This can be someone within the office or, if it is appropriate, an external party. You may find that your company has specific policies on how to tackle issues of this sort. However, if not, the chosen investigator should be briefed on certain aspects of the inquiry, including:

A timeframe in which to conduct the research
Guidelines on their responsibility as an investigator
How their evidence will be presented
Minimising the investigation’s impact on employees’ morale
Minimising the investigation’s impact on the day-to-day running of the business.

It is worth remembering that, ultimately, the employer bears full responsibility for the manner, fairness and impartiality of the investigation. CCTV can be an important tool in uncovering the truth of the matter, as can computer records. The chosen investigator should be given access to both.

Following Up the Results of the Investigation

In the event that the evidence proves the employer’s suspicions to be groundless, then the situation should be dismissed. If the employee has become aware that they are or have been investigated, the best procedure is complete transparency. If appropriate, you might need to present them with the evidence that presented the grounds for suspicion.

If the investigation provides firm evidence of employee theft, you will then need to decide what to do next. Most companies have protocols and procedures to follow. As a rule of thumb, the next step is to report the findings and present the proof to the company’s legal advisor. Smaller companies, who may not have representatives of this sort, are advised to seek the services of an Employment Law advisory services solicitor. Either option will provide you with the information you need to begin disciplinary proceedings.

Interviewing the Accused

Reporting employment theft to the police is at the employer’s discretion. This can result in criminal proceedings and either a financial fine or, in some cases, a prison sentence. However, most cases of employee theft are dealt with internally, either resulting in disciplinary action or dismissal.

Prior to any action being taken, it is strongly advised that the accused is interviewed. This gives them the opportunity to give their side of the story and is part of the process of fairness and impartiality. The interview should be conducted in a calm and reasonable manner and evidence supporting the accusations should be presented. Should the theft be proven, then the employer should once again consult a legal advisor.

While it might seem a long road to take, riddled with procedure, ensuring that your investigations follow the appropriate guidelines, protocols and advice are as much a protective measure for the employer, as they are the path to bringing a thief to justice.

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Unfair treatment by creditors…..your rights

Being in debt can place significant stress on a debtor’s personal relationships, professional life and even their health. However, the situation can be exacerbated if the debtor feels they are being unfairly treated by the people they owe money to.

Under UK Law, creditors have a right to contact you in order to recover unpaid debts. The permitted methods of contact include email, letters, phone calls or even visiting your home. However, the law also requires that they act within a certain code of conduct and adhere to particular protocols when pursuing that debt. If they deviate from what is considered to be reasonable, you may find that you are able to launch an official complaint.

The Financial Conduct Authority

It pays to be aware that any company that offers consumer credit services must be registered with the Financial Conduct Authority (FCA). The FCA is the body authorised to grant ‘interim permission’, allowing, among other things, those companies to implement debt-recovery procedures. However, the FCA has also set out clear guidelines detailing a code of practice that their members are required to abide by. Among those rules, members are expected to:

Treat debtors fairly
Clearly state their intentions and actions
Give the debtor a reasonable amount of time in which to repay the debt.

What Constitutes Unfair Treatment?

Reputable firms and debt-recovery agencies will always abide by the codes of conduct set out by the FCA. However, there are less scrupulous companies out there, who may not adhere to these protocols. In cases such as these, it’s worth remembering that certain behaviours, practices and types of conduct have been declared illegal. These are defined as harassment or unfair behaviour and include:

Sending communications that falsely appear to be from a court
Making contact at unreasonable times of day or night and with unreasonable frequency
Refusing to give statements of balance concerning the debt
Falsely claiming to have legal powers
Talking about your debt with members of your family or your employer
Using legal or technical jargon that confuses you
Encouraging you to repay your debt by borrowing more money

Are you Dealing with who you think you’re Dealing with?

In the event that you feel you are being harassed, it’s important to know exactly who you’re dealing with. Creditors often pass debts on to outsourced companies. If they do this, they can no longer pursue you for that money; it is now the responsibility of the delegated debt recovery agent. However, creditors must inform you of their decision to pass on that debt, in writing, before the event.

How to Launch a Complaint

What are your rights in a situation where you believe you are being treated unfairly by a creditor? As with any legal situation, evidence is crucial to demonstrating that harassment and being able to support your case. In the first instance, you should make a record of any letters or communications you have received from the creditor. It’s also worth noting the dates, times and number of visits or phone calls you have received. If possible, you should document who you spoke to and the content of the conversation.

The next step is to write to the creditor, via letter or email, and ask them to cease the harassment. You can explain how you’d like communication to continue and remind them that their current protocols are in breach of the guidelines set down by the FCA and could result in legal action. Keep copies of all communications you send.

If the creditor fails to acknowledge your requests or simply does not abide by them, you may wish to complain to a professional body, such as the FCA or any trade associations the creditor belongs to. In this instance, it’s a good idea to seek the services of a professional solicitor, who will be able to identify if your case is worth pursuing and, if it is, which avenues are the best to take.

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How to delist a listed cottage or building

While listed buildings are often attractive, brimming with character and desirable purchases, they can come with potential headaches for the new owners. Listed buildings do not enjoy the freedom associated with new-builds. Often, listed cottages and buildings come with certain restrictions – it’s part of the privilege of owning a dwelling that holds historic interest. These can include higher insurance premiums, when compared to non-listed buildings, and the requirement for special permission to be granted for works to be undertaken on the property such as the building of an extension, alterations on its outside or internal layout changes.

However, there is the option to challenge the building’s listed status.

Why are Buildings Listed?

Before you consider having your property removed from the list of ‘heritage buildings’, it’s worth understanding why it might have been put there in the first place. According to the National Heritage Trust, which is the organisation responsible for publishing and maintaining the list of designated properties, “a building is listed when it is of special architectural or historical interest, in the national context”.

There are estimated to be around half a million listed buildings in the UK, the majority of which were built between 1700 and 1940. To qualify for the list, the building must be in a condition close to the one in which it was built. While there are newer listed buildings, these must demonstrate unique or remarkable features in order to make the grade. You can find out whether a property is listed and what criteria engendered its listing, by searching the National Heritage List for England.

Delisting a Property

Delisting a property is not an easy undertaking. Typically, only around 50% of applications are approved and the review process is a lengthy one. However, if you feel that your building qualifies to be delisted, there are certain procedures you should follow.

The first step is to register with Heritage England. To support your case, you will need to provide evidence that proves the building doesn’t meet the criteria to be deemed a listed building. This can include photographic evidence and surveys and you may find you need the services of a conveyancing specialist, to present all the details for review.

In some circumstances, however, this will not be necessary, such as in a case where the property has been destroyed and the potential for any repair or restoration has been entirely eliminated.

The repairs and restoration clause may even extend to fabrics used, so the property will have to be beyond any help before it can be considered for delisting and permission granted for a new one to be put in its place. In any event, the cause of the damage will always be investigated.

Will my Application be considered?

There is also the option to argue that the original listing was not warranted. However, any application for delisting will only be considered in the first 28 days after the list has been published. With this in mind, it’s worth preparing your case before the publication date, as it can be a lengthy process. In addition, you’ll find that there are certain conditions under which an application is unlikely to be considered. These include:

If building works are shortly to be undertaken
The building has had a notice of repairs served on it
The building is the subject of an appeal against refusal of consent

Why Delist a Building?

Successfully delisting a building can give the owner some advantages. You may find that your insurance premiums are reduced, and it could be that you won’t need to source particular materials when it comes to repairs and maintenance.

However, the process can take around five months and incur significant expense. Despite this, delisting applications are made on a daily basis by property owners who want to free themselves from the restrictions levied on buildings that are deemed to be of historical or architectural interest.

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Bribery Act 2010

Wake-up call for small companies on bribery process

The activity of political consulting firm Cambridge Analytica has been hitting both headlines and the Facebook share price, following accusations that it used the personal data of millions of Facebook users to sway the outcomes of the 2016 US presidential election and the UK Brexit referendum. Executives from the company were also filmed by an undercover journalist apparently suggesting that honey-traps and bribery might be used to discredit politicians.

The company denies the allegations, saying that the Channel 4 news story was edited to misrepresent the conversations and explaining that its staff will actively try to tease out any unethical or illegal intentions from prospective clients, because legality and reputational risks are critical in assessing new projects. In the statement, the company highlights how it uses such meetings to make an informed decision about who to engage with, in line with the guidance of the UK’s Bribery Act.

The Bribery Act came into force in 2011, with the aim of simplifying and consolidating existing law on corruption and creating a new crime of failing to prevent bribery. In simple terms, bribery is defined as giving or offering a person a financial or other advantage with the intention of inducing them to act improperly. It is also a crime to ask for or to receive an inducement in return for acting improperly.

And having the right processes in place to comply with the tough standards introduced by the Act is not just the concern of big business.

In R v Skansen Interiors Limited, a contracting company employing 30 people was charged with failing to prevent bribery under Section 7 of the Act, resulting in the first contested trial of this offence since the Act came into force in the summer of 2011. The action was taken despite the company self-reporting the illegal conduct of its former managing director in making bribes to win contracts.

The company had anti-bribery and anti-corruption policies in place, and had identified and stopped the largest bribe payment before it was paid, but the measures were found to be insufficient to meet the defence under the Act.

Said Mark Dooley, white collar crime expert with Oxley & Coward Solicitors LLP: “The outcome of this case illustrates the difficulties that smaller companies may face in trying to act responsibly and keep within the law. Certainly, Skansen thought they had matters well covered, and by taking action to self-report may have imagined that their actions would have been considered exemplary, rather than falling short.

“What is interesting is that by the time the case was heard, the company had become dormant, so no financial penalty could be imposed and the only sentence could be an absolute discharge. When the judge asked why the prosecution had been brought in such circumstances, the Crime Prosecution Service said that it was in the public interest and they wanted to send a message to others.”

He added: “The message is loud and clear – you must have processes and policies that meet best practice conditions, whatever the size of your business, and be able to demonstrate how it is embedded within the culture of the company. That will be demonstrated through regular risk assessments, ensuring staff are kept up to date on procedures, undertaking due diligence on clients and agents, and making sure written documentation hits the right standard and matches up to the requirements of the Act.”

www.justice.gov.uk/guidance/bribery.htm

R v Skansen Interiors Limited

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Employment law = national minimum wage and standby arrangements

Firefighter ruling sparks new heat for employers

The standby arrangements for Belgium’s volunteer firefighters are set to cause new headaches for employers with workers who are paid flat rates for time on-call or when sleeping in the workplace, with a judgement that will affect companies across the European Union.

The Court of Justice of the European Union (CJEU) has ruled that volunteer firefighter Rudy Matzak is a ‘worker’ and that within the meaning of the Working Time Directive his time on standby is ‘working’ time.

Under that Directive, ‘working time’ refers to “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice”. It applies to all sectors, including both public and private, and ‘rest period’ refers to any period not classed as working time.

When he was on call, Mr Matzak had to be at home and able to fulfil the requirement of an eight minute response time to reach the fire station, and the Court said that this obligation to remain “physically present at the place determined by the employer and the … constraints resulting from the need to reach his place of work within eight minutes” meant that he was limited in how he could pursue his personal and social life. This contrasted with a worker who may be asked simply to be contactable.

The knock-on effect for employers of standby time being deemed to be working time is that it has to be taken into account when complying with rest periods, working hours and the National Minimum Wage.

The judgement follows hard on the heels of last year’s hearing by the Employment Appeal Tribunal of three cases – Focus Care Agency Ltd v Roberts, Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake – which said that businesses must conduct a ‘multifactorial evaluation’ as there was no clear, hard and fast way to distinguish between on-call workers who are considered to be ‘at work’ and those who are not. In that judgement, the factors highlighted as likely to be a ‘working’ situation included whether an employee was on site to comply with a regulatory or contractual obligation, whether they would be disciplined for failing to remain on stand-by, and if they had to keep a listening ear and respond, and the extent to which they had to initiate action.

“This latest judgement adds to the already complex minefield for compliance with on-call workers,” said employment law expert Amy Cusworth of Oxley & Coward Solicitors LLP. “It’s in Belgium, but as we are still part of the EU, it is just as important here.

“Whether or not a worker on standby is ‘working’ will depend on the circumstances of each case, but the fact that the issue is complicated with grey areas does not mean that businesses can ignore it – ignorance of the law has never been a valid defence. Back-pay for up to six years could be due and that could mean substantial sums.

“For any situation that seems unclear, it’s worth getting some independent advice. An easily made change to the way that on-call systems are operated might clarify things and take an employee out of a potential ‘working’ situation.”

In any situation where the on-call claim is found to be ‘working’ time the National Minimum Wage Regulations (NMW) will apply. The NMW Regulations apply to any eligible worker, whether or not they are paid by the hour and calculations must be made according to the payment basis, to check if the equivalent hourly rate is at the right amount. New rates for the National Minimum Wage come into force from April 2018, applicable to the various rates, including the National Living Wage for eligible workers aged over 25, and other age-related rates.

Year	25 and over	21 to 24	18 to 20	Under 18	Apprentice
April 2017	£7.83	£7.38	£5.90	£4.20	£3.70

Court of Justice of the European Union: Case C-518/15 Ville de Nivelles v Rudy Matzak

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issue

Protecting digital assets in your Will

Tracking your digital worth for the next generation

The value of our online lives is worth billions of pounds but many of these assets may never be passed on, as people are failing to record their digital worth.

In research undertaken by accountants PWC, the value of our digital assets was estimated at £25bn, yet in a YouGov poll over half of those surveyed admitted nobody would be able to access such assets after their deaths, as they had not made any arrangements to deal with what would happen.

As a result, finding out how to protect confidential information and pass on digital assets is becoming increasingly important – whether when making a will and appointing executors, or considering attorneys to act during a period of ill health or other incapacity.

Digital assets include all content, accounts and files created and stored in a digital form, whether online, in the cloud, or on a computer or smartphone. These assets may have great financial or sentimental value.

Obvious examples of assets with a tangible financial value would be bank, building society or other types of investment accounts, but could also include gambling accounts, cryptocurrency accounts and internet payment accounts like PayPal.

Social media accounts, personal photographs and other personal records and correspondence may only have sentimental value, but in between, there may be some that have a potential value, such as domain names, blogs, or affiliate accounts that generate advertising revenue.

As the Yougov research highlighted a common problem associated with digital assets is that it is not always clear who owns digital content after death. Often the reason for this is that users found the detailed terms & conditions too difficult to understand or so long-winded that they did not read them. Some digital assets may be only a licence to use services, such as online music and media supplied through Apple’s iTunes. This sort of licence is personal to the individual and cannot be transferred to another person.

“Protecting digital assets by making sure your executors know exactly what you own is becoming increasingly important, so you need to make sure it’s on the list when it comes to making or updating your will,” explained Thomas Lee, private client expert with Rotherham solicitors Oxley & Coward LLP. “Physical assets are relatively easy to identify, but if you don’t provide any record of assets held online, it’s quite possible they would be overlooked. The other problem is where access is blocked, which may be because executors don’t have the log on information or because they don’t have authority to access the account.”

Some accounts will not allow access by a third party, even if they are authorised to do so by the account holder, and in this case, it would be unlawful if executors access the account using the account holder’s log-in information.

This sort of restriction may be a problem also for attorneys acting under a power of attorney, whether for a specific purpose or more generally, under a Lasting Power of Attorney (LPA) for financial affairs. An LPA, which allows an individual to appoint one or more people to act as their ‘attorneys’ to help in the management of their affairs, is common among the elderly or those who are suffering long term illness, although they are increasingly put in place by younger people who may need to enable partners or others to act on their behalf while they are away, for example when travelling for business.

Protecting your digital assets:

Make a full listing of all digital assets, including where they are stored; keep the listing updated regularly and store it securely. This can be alongside your will.
Make a record of all usernames and passwords, together with the email address associated with the account, in case it is needed to reset a password, and store this separately and securely from the full listing. There are also software options for secure storage of account details and passwords.
Never include any personal log-on information or account information within the will itself, as it becomes a public document once the Courts issue a Grant of Probate to executors. Similarly, no such information should be included in a Lasting Power of Attorney as the document must be shared with institutions and companies when attorneys request authority.
Assets that have only sentimental value, such as photographs, can be gifted within your will as personal chattels, to ensure they do not get overlooked.
For all online assets, check the small print and find out what happens to the account on death and then leave guidance to your executors, including whether you wish any particular accounts to be deleted or held as memorials.
Give specific authority to your executors to access and manage all your digital assets. This should be in writing and can be included within your will or made in a separate document that is signed and witnessed.

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Working Time Regulations and 20 minute breaks

When mini breaks just don’t cut it

Tribunal says twenty-minute rest periods for workers should be given in one run, not as a series of mini-breaks

The mini break may have made the perfect date for Bridget Jones, but when it comes to employee rights, companies need to make sure they do everything to enable workers to take a full, uninterrupted 20-minute rest break.

The warning comes after Network Rail was found to have failed to take the necessary steps to facilitate full 20-minute rest breaks, despite the employee being in a role that has special provision for alternative arrangements.

The case was brought by a railway signalman who was responsible for running single-manned signal boxes on eight hour shifts. Due to train timetables, he could not take an uninterrupted break and had to be on-call when he did take a break. As a result, he argued that he had been denied his legal entitlement under the Working Time Regulations 1998 (WTR).

All workers are entitled to an uninterrupted 20-minute rest break away from their usual working location after six hours of working under the WTR. It must be known to be a rest break before it starts, so if someone has had an unexpected 20 minute gap in their day, this can’t be treated as the rest break retrospectively.

If a worker is on call during a break, then it will not count as a rest break, but Regulation 24 of the WTR says that some workers will be excluded from these provisions as it may not be feasible to schedule the rest break in the usual way, but they must be allowed an equivalent period of compensatory rest. This applies to railway workers and others such as paramedics, or lone workers such as those in a security role.

Although Network Rail provided a relief signaller in some regions, they did not do so in Mr Crawford’s region and instead told him that he could take shorter breaks during his shifts “between periods of operational demand” and that these shorter breaks would add up to more than 20 minutes.

At the first hearing the Employment Tribunal held that Network Rail had acted correctly and that when added together the short breaks were compliant with the requirements of compensatory rest. But Mr Crawford appealed, and the Employment Appeal Tribunal (EAT) ruled against Network Rail. The EAT said that if it were possible to provide workers with a full uninterrupted 20-minute break, then that should be what happens. As Network Rail were providing the relief signalman in other regions, they must have been able to take steps to provide the same option in Mr Crawford’s region.

Said Amy Cusworth, employment expert with Oxley & Coward Solicitors LLP : “Minimum rest periods are there for the protection of health and safety and this ruling demonstrates, once again, that tribunals will not allow employers to duck out of their responsibility.

“As with all terms of employment, the starting point should be a clear policy that everyone knows and understands, especially where workers are involved in environments in which pre-scheduled breaks are hard to operate, or they are working alone. It’s important to re-evaluate regularly and see if problems are arising, and take steps to ensure that breaks are being taken. You also need to be proactive about it, as arguing that a worker never asked for a break is not going to let you off the hook.”

She added: “If you have a situation where it is difficult to give workers an uninterrupted break, away from their work station, then it’s worth reviewing the position with some specialist guidance, as the alternative may be an expensive tribunal claim.”

Crawford v Network Rail Infrastructure Limited

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Contract Law

By commercial law specialist Amy Cusworth of Oxley & Coward Solicitors LLP.

Crossing and dotting makes for clear contracts

Tesla founder Elon Musk is set to become the richest man in the world if he succeeds in growing the company to $650bn, after agreeing to work for no pay for ten years, in return for what’s been estimated as a $55.8bn bonus if he hits target.

He must have weighed up the risk, and as he is already a very wealthy man with a fortune of some $21bn he will not go hungry while labouring away for the next decade, but one hopes he has put in place a very clear contract. It may seem surprising, but all too often such agreements are made on a so-called ‘gentleman’s agreement’ which is challenged later, leading to battles fought in court.

Last month [February], art dealer Simon de Pury won his action in the High Court for payment of a $10million commission over the sale of a famous painting by Gaugin – money that he claimed he was owed under a gentleman’s agreement with the seller.

But when a former investment banker claimed that Mike Ashley, the chief executive of Sports Direct, had agreed to pay him a £15million bonus if the Sports Direct share price doubled within three years, a High Court judge ruled that the requirements for a binding contract had not been satisfied.

Both cases are interesting, not least because of the high stakes and colourful characters involved, with sensational details and claims of misbehaviour made in court, but also because they take us back to the fundamentals of contract law, something the judge revisited in detail when summing up in Blue v Ashley.

Jeffrey Blue was providing consultancy services to Mr Ashley and had been asked to find a new corporate broker. As a result, he, Mr Ashley and three representatives of a potential corporate broker got together on 24 January 2013, at the Horse and Groom pub.

Blue claimed that Mike Ashley had agreed on that night to pay him a bonus of £15 million if he helped to raise Sports Direct shares from £4 to £8 over a three-year period. He claimed the conversation had formed a legally enforceable contract, but the circumstances that surrounded the conversation were a significant factor in Mr Blue losing his case, as it took place during a heavy-drinking session in a pub.

The judge dismissed the claim, saying the agreement was “not a serious discussion…but was banter in which Mr Ashley was displaying his wealth and scale of ambitions“, not a contract, and “that there was no one present in the Horse & Groom pub who thought that it was genuine…they all thought that it was a joke”. Justice Leggatt summed up his judgement by saying that “the fact that Mr Blue has since

convinced himself that the offer was a serious one, and that a legally binding agreement was made, shows only that the human capacity for wishful thinking knows few bounds”.

But the ‘wishful thinking’ required a High Court judgement to settle the dispute, and nowadays, when we are all involved in communicating in so many ways – email, text, voicemails – and in so many different environments, including the corner coffee shop, it’s worth revisiting what does constitute a binding contract.

Under English law it is possible to make a contract without any formality, simply by word of mouth, but if there is no written record the existence and terms of a contract may be harder to prove. In such a case an agreement may be unenforceable on the grounds of uncertainty. And because the value of a written contract is well-recognised, not putting things in writing in a business context may undermine later claims, as happened in the Blue v Ashley case. Indeed, one of the requirements for a binding contract is an intention to enter into legal relations and not recording an agreement in writing might of itself suggest that there was no such intention.

In looking for evidence of what was intended and understood by the two men, the judge highlighted how unusual it was to have a claim for millions of pounds based entirely on a word of mouth agreement, with no other record existing. As he said: “In the twenty-first century the prevalence of emails, text messages and other forms of electronic communication is such that most agreements or discussions which are of legal significance, even if not embodied in writing, leave some form of electronic footprint.”

This case had no such footprint, with the only source of evidence being what was said in the pub as recalled by the different people present, and with no later conversations recorded or referred to in any written exchange. This led the judge to conclude that Mr Blue did not take the offer to be a serious one at the time, saying: “I cannot believe that if Mr Blue had thought at the time he had made a contract with Mr Ashley under which he stood to potentially receive £15m he would have regarded it as unnecessary for months afterwards to ever check that Mr Ashley recalled what had been said.”

By contrast, the legal action over the gentleman’s agreement concerning the sale of the Gaugin painting between former Sotheby’s executive Ruedi Staechelin and the husband and wife team of art dealer and auctioneer Simon and Michaela de Pury, although not written into a formal contract was covered by a series of emails and other communications.

The Tahitian period painting, Nafea faa Ipoipo (When Will You Marry) was owned by Mr Staechelin, who was approached by Mr De Pury to see if he might be interested in selling the work, and Staechelin said he would not accept less than $250 million for it, net of commission. The sale took some time to go through, but was eventually made in 2014, when it was sold to the emir of Qatar, Sheikh Tamim bin Hamad al-Thani for $210 million.

But when the de Purys claimed the $10 million commission they said they were owed for helping negotiate the sale, they were sent away. Mr Staechelin’s lawyer argued that they had known the Qataris would not pay more than $210 million but had encouraged the negotiations by saying they were willing to pay $230 million, so they had breached their fiduciary duty and forfeit any right to commission, if it had ever existed. The judge did not agree, upholding the claim of a legally binding contract for commission to be paid, so there was a happy outcome for the de Pury’s, but only after three years of legal action.

So, is it the case that when it comes to a verbal contract – or gentleman’s agreement – sometimes you win, and sometimes you lose? Well no, it’s not that simple.

Each of these two cases arrived in the High Court because of their individual and complex set of circumstances. The outcomes extended well beyond a simple review of whether something was written down or not, but it is always good practice to record any verbal agreement in writing, whether millions or hundreds of pounds are involved, and ideally have it signed by all parties, if you want to be able to rely on it later.

Blue v Ashley [2017] EWHC 1298 (Comm)
ACLBDD Holdings Ltd & Ors v Staechelin & Ors [2018] EWHC 44 (Ch)

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Making a case study of an enforceable contract : the judgement in the case of Blue v Ashley

The basic requirements of a contract are that both sides have reached an agreement, which is intended to be legally binding, is supported by consideration, and is sufficiently certain and complete to be enforceable.

Looking at those components in turn, in the case of Blue v Ashley, Judge Leggatt revisited the evidence against each of the textbook requirements for a binding contract:

Agreement when an offer is made and accepted

The necessary agreement is reached either by the parties signing a document containing agreed terms or by one party making an offer which the other accepts, by words or conduct. Typically, acceptance is at the point of promising to do something, except in ‘unilateral contracts’ where the contract is established when the recipient of an offer starts to perform the action required to earn the reward. In this case it was argued that this was a unilateral contract and the acceptance took place when he started work directed towards increasing the share price value. But the judge highlighted that an offer may not always be intended: “There can be circumstances in which a person uses the language of offer without expressing a genuine willingness to be bound” giving the example of someone saying at a party they will give you a million pounds if you can speak for a minute on a topic, in which circumstances no-one would reasonably think the words were meant to be taken seriously, or to be legally binding.

Intention to create a legally binding contract

Even when a person makes a real offer which is accepted, it does not necessarily follow that a legally enforceable contract is created. It is a further requirement of such a contract that the offer, and the agreement resulting from its acceptance, must be intended to create legal rights and obligations which are enforceable in the courts, and not merely moral obligations.

Factors which may tend to show that an agreement was not intended to be legally binding include where it is made in a social context, if it was expressed in vague language or that the promise was made in anger or jest. As an example, Justice Leggat said: “if two people agree to meet for a drink at an appointed place and time and one does not turn up, no one supposes that the other could sue to receive his wasted travel expenses.” There must be the intention for a legally binding contract to be created.

Consideration

To be legally binding, an agreement must traditionally be supported by consideration as English law will not enforce a promise for which nothing has to be done in return. So, if the offer to pay £15 million on the Sports Direct share price reaching £8 per share was simply accepted by Mr Blue, and he did not need to commit to do anything to achieve the outcome, it would not give rise to a legally binding contract. But to qualify for the payment, Mr Blue had to “get” the Sports Direct share price to £8, undertaking work which was aimed at increasing the share price to that level, so the requirement of consideration could be demonstrated.

Certainty and completeness of terms

Even if there is an agreement and an intention to create legal relations, a contract will be unenforceable if its terms are too vague and uncertain, another ground on which Mr Ashley disputed Mr Blue’s claim.

Blue v Ashley [2017] EWHC 1298 (Comm)

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Businesses face bigger penalties on data leaks

Businesses are on final countdown to the introduction of the General Data Protection Regulation in May 2018, bringing with it tighter rules and greater penalties for data processing, and the outcome of a landmark High Court case has made the preparation even more pressing.

The case involved an online leak of payroll data by Andrew Skelton, a disgruntled ex-employee of supermarket chain Morrisons. Skelton received an eight year conviction for offences under the Computer Misuse Act 1990 and the Data Protection Act 1998 (DPA). However, over 5,000 current and ex-employees later joined together to bring a claim against the company itself, with the court finding Morrisons liable for the actions of its former member of staff.

The data included salary and bank details of some 100,000 staff and the ruling, which is the first data leak class action in the UK, allows those affected to claim compensation for the “upset and distress” caused.

Although Morrisons has said it will appeal, experts are predicting that the judgement of vicarious liability will make General Data Protection Regulation (GDPR) compliance even more pressing for both employers and suppliers of contract labour where data processing is involved.

“This judgement is of huge importance, because Morrisons was held liable for the criminal misuse of third party data by an employee. The impact extends beyond the claims for compensation from employees, it’s also the impact on reputation and the financial and physical resources involved in dealing with the data breach. Reportedly, Morrisons spent more than £2m in responding to the misuse,” explained Miss Amy Cusworth of Oxley & Coward Solicitors LLP. “Data breach is a growing worry for a business, whether relating to employees or customers, and it is set to be even higher on the agenda in the new environment of GDPR post-May 2018.”

Bringing in a tough new era in EU-wide data protection law, the GDPR will replace the UK’s 1998 Data Protection Act, with new powers for data regulators and much stricter operating boundaries for businesses that process personally identifiable information about individuals.

The aim is to harmonise data protection across all EU member states by making it simpler for everyone, including non-European companies, to comply, but it brings greater responsibilities for data processors and big penalties of up to 4% of worldwide turnover for non-compliance.

The biggest change is that the Directive applies to any business processing personally identifiable information about EU citizens. This means that any UK business that is trading with EU citizens before or after Brexit will be affected, as will anyone who transfers personal data from the EU to the UK for processing or storage.

“The Government has said that GDPR compliance will be the minimum standard in UK law post-Brexit, to enable UK companies to do business across Europe,” added Name. “And anyone who hasn’t already started on the journey towards GDPR needs to do so as a matter of urgency, as every business and organisation is affected, however small, and must be able to demonstrate they are complying, not just dealing with problems after they occur. While it’s likely that most will need some specialist expertise on the legal technicalities and IT processes, as a starting point there is some excellent preparatory guidance on the Information Commissioner’s website.”

GDPR provides stronger protection for individuals in terms of consent. In place of the previous ‘opt out’ approach, organisations will have to secure positive consent from individuals for their data to be collected. The consent can be withdrawn at any time, as individuals have ‘the right to be forgotten’ and can also transfer their data elsewhere if they choose. Where data is to be processed for a purpose beyond that for which it was originally collected, there will need to be fresh consent. There are strict rules around data relating to children under 16 and requirements for parental consent.

The organisation will also have to provide more information about how data will be used and how long it will be kept for, as data must not be held for any longer than necessary. If data will be stored outside the EEA, details must be provided, including what safeguards will be in place.

There is a distinction between controllers and processors of data. The controller determines the process and means of processing personal data, where a processor acts on behalf of the controller. However, each has obligations in the event of a breach or lack of compliance. For an organisation that sub contracts its processing, there is a high duty of care imposed in selecting their data processing provider with procurement processes to be followed and regular ongoing reviews once appointed.

Under GDPR there will be a statutory obligation to notify the regulator – the ICO in the UK – of any breach, if an individual’s personally identifiable information is at risk as a result. Fines can range up to a maximum of €20m, or 4% of total worldwide turnover for businesses, for serious contraventions.

Various Claimants v Wm Morrisons Supermarket PLC [2017] EWHC3113 (QB)

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Employment Law – Making sure the work environment is safe

Winter has slammed into the UK with a vengeance this year, with record snowfalls and Arctic winds blasting the length of Britain. It can be difficult enough trying to get through hazardous weather conditions to reach work on time, but what if when you get there the office is only marginally warmer than the outside temperature? Here’s a quick guide to your employer’s obligations when it comes to creating and maintaining a safe working environment during cold weather.

The legal requirements

Despite what a lot of people think, there is no actual legal ‘minimum’ required temperature for a working environment. This is because businesses such as refrigeration storage and chilled food warehouses or factories would instantly contravene the law. There is, however, a guideline range of between 13°C (if the work involves ‘rigorous physical effort’) to 16°C. The guidelines are laid out in the Workplace (Health, Safety and Welfare) Regulations 1992, Regulation 7, which states ‘During working hours, the temperature in all workplaces inside buildings shall be reasonable.’ Obviously, the definition of ‘reasonable’ is open to interpretation, and this could cause a problem if you feel the workplace environment is too cold.

It’s worth bearing in mind, too, that the regulations only apply to employees. So if a member of the public visiting a shopping centre feels that the temperature is too cold, then the only real option they have is to put an extra jumper on!

Slippery surfaces

An employer’s duty of care doesn’t just include the inside of a workplace building, but the paths and parking outside. So it’s down to an employer to make sure that paths are salted during icy conditions, and that snow or standing water is cleared. As the council won’t carry out gritting or salting on private land (only the public footpaths or roads will be covered by the council services), employers may need to either hire in contractors to deal with icy conditions, or carry out precautions themselves.

If an employer doesn’t ensure that icy paths are salted and an employee slips on the ice, injuring themselves, that could result in an injury at work compensation claim. If the employer doesn’t have adequate public liability cover, that slip could be very costly indeed.

PPE – wrapping up warm

For employers who have teams or workers operating outside or in cold interiors such as refrigeration warehouses, there is a legal obligation to provide adequate Personal Protective Equipment (PPE). This would include everything from gloves and boots to high-viz jackets, thermal layers and eye protection. If an employer fails to provide adequate PPE, then employees can talk to a legal or union representative and encourage the employer to ensure their health and well-being are catered for.

Can I refuse to work if it’s too cold?

If the temperature drops below 13°C then technically you could be allowed to refuse to continue working, but the law is very grey as to whether you would be entitled to paid leave under those circumstances. The first thing to do is to inform your boss or union representative that conditions are falling below the minimum standards expected of a healthy and safe working environment, and try to resolve the situation amicably. It could simply be a matter of asking them to turn up the heating thermostat a couple of degrees.

If they continue to refuse then you may have grounds for further action. If you feel that your health is being compromised by a consistently cold working environment and that your employer has not taken steps to fulfil their duty of care, then talk to a solicitor who will be able to advise you on what action to take next.

A working environment that is too cold doesn’t encourage productivity, and can put workers at risk of health issues. It’s up to the employer to make sure they are creating a safe, comfortable workplace. Not only is it part of their duty of care, but it’s in their best interests to have a warm, productive workforce who are comfortable in their environment.

Consumer Law – returning goods – Did you keep the receipt?

From dreadful Christmas jumpers to gadgets you simply don’t want, we all get presents that we wish we hadn’t at this time of the year. It might be the ‘thought that counts’, but sometimes you simply want to get rid of something and exchange it for a gift you truly do want. So what are your rights? Can you simply take it back to the shop, or are things a little more complex?

Gifts bought on the high street

The assumption is that as a consumer you are automatically entitled to return goods to high street shops as long as it’s within a reasonable amount of time, and that you have proof of purchase such as a till receipt.

However, shops are under no legal obligation to accept goods if they are being returned because you don’t like them. The only reasons they are legally bound to accept returns under the Consumer Credit Act is if the goods are not as originally described, could be regarded as ‘not fit for purpose’, or are faulty. To make life easier for customers, though, most high street stores will accept returns and either offer an exchange or refund as a matter of goodwill, but they are not contractually obliged to, even if you do have the receipt.

If a retailer does have a returns policy, then you’ll usually have between 28-30 days to return an item and get a refund or exchange. Often, shops will extend this period immediately after Christmas, so you do have a few weeks to make up your mind whether you really do like that scarf or not.

Proof of purchase

This can be a tricky one with Christmas gifts, especially if they’ve been bought for you by a relative. Opening a present on Christmas morning and then asking, “Did you keep the receipt?” will probably not be well received! However, there’s no getting away from the fact that proof of purchase is an important part of the process, and without it you may not be able to get a refund or exchange.

Bear in mind that if the present was bought using a debit or credit card then any refund will go straight onto that card, rather than to you. So your most likely resolution will either be a credit note or an exchange.

Does it have to be in the original packaging?

Technically no, but some retailers will only exchange or refund an item if it is returned in its original packaging. So keep the box your gift came in, just in case.

Faulty items

If an item is faulty then you’re on much firmer ground. Under the Consumer Rights Act as long as you return an item within 30 days of purchase you can do so without a receipt and still have the right to a full refund.

If you don’t want to return or exchange the item then you can ask for it to be repaired. You also have much longer to do this – up to six months. However, this only applies to the person who bought the item, and not the recipient. So if your iPod does stop working or your sports tracker stops tracking, ask the person who gave it to you to try to get the situation resolved directly with the retailer.

Presents bought online

Surprisingly, you may find that you have even more protection legally if your present was bought online, ordered over the phone, or was bought through mail order. Under the Consumer Contracts Regulations, the purchaser has the right to cancel an order up to 14 days after it was placed. This ‘cooling off’ period extends up to 14 days after the goods are delivered, so there’s plenty of time for a recipient to change their mind and ask a purchaser to return the item. The purchaser can do this and expect a full refund, even if there’s nothing wrong with the goods.

Things you can’t return

DVDs, CDs, games and computer software – most retailers will not accept these as returns if the packaging and seals have been broken.
Make-up and toiletries – non-returnable for hygiene reasons
Perishables – such as flowers and food
Personalised items

If you’re having problems returning an unwanted gift to a retailer and you think they are refusing to comply with consumer protection legislation, talk to a solicitor who specialises in consumer law.

Keep Christmas for the Children

Christmas celebrations for children are too often marked by family divisions when relationships break down.

According to statistics from the ONS around 100,000 children per year see their parents divorcing, with many of those families breaking up immediately after a last Christmas together, and family lawyers seeing a surge in enquiries for divorce each New Year. Alongside, there are many more children who will be affected by family breakdown, but who are not shown in those statistics, where their parents are not married.

And while the break-up may offer hope of ending a difficult time, too often it marks the start of a new challenge, with couples engaged in a drawn-out and combative process, instead of collaborating to find common ground.

For many families, the final Christmas will be marked by arguments and behaviour that may come to be used as an example of the unreasonable behaviour that will form grounds for divorce. To secure a divorce, the marriage must be shown to have broken down irretrievably, with most being ‘fault-based’ – adultery, unreasonable behaviour and the rarely-used fact of desertion. The only alternative is a period of separation of at least two years before issuing the divorce petition, but separate living arrangements can be difficult to achieve before assets have been divided through the process of divorce. And while the break-up for unmarried couples appears to offer a simpler exit strategy, it underlines the lack of legal protection for cohabiting partners.

There have been calls for a change in the law to allow for ‘no fault’ divorce without long separation, with those advocating the change arguing this could reduce animosity and provide a better environment for children. Most recently Baroness Hale, the first female president of the Supreme Court, spoke out to say that the law should be changed to address injustices, including ‘no fault’ divorce, statutory backing for pre-nuptial contracts and greater rights for cohabiting partners, who have been shown to be at greater risk after a break-up, with few routes for financial protection.

Explained family law expert Sarah Scott of Rotherham-based solicitors Oxley & Coward LLP: “Many people who have been living together for any length of time, sharing a home and bringing up children, think they have some special rights through a ‘common law marriage’. But there are no such protections unless something is legally owned between the two of you – for example if your name is on the title deeds for a property, as joint tenants or tenants in common, or if you have a jointly named savings account.

“The lack of financial remedy for cohabiting couples is often the biggest issue. While a parent can be made to contribute to the maintenance of their children, there is no such protection for a former partner to claim maintenance if they cannot work while bringing up the children of the relationship. Similarly, they may find themselves with nowhere to live.”

She added: “Whether starting out, or in a committed relationship, and whether married or cohabiting, it’s sensible to think about protecting assets through a pre or post nuptial agreement or a cohabitation agreement. For many couples, simply having the frank discussion that goes into making such an agreement can help to create a positive, open attitude in a relationship from the start. While pre or post nuptial agreements are not yet binding in the UK, they have increasing weight after being tested in the courts.”

And for those couples anticipating their last Christmas together, the advice is to seek collaborative approaches to arrangements for both children and financial matters. For divorcing couples, mediation will usually involve sorting out such arrangements separately from the actual divorce proceedings, with the resulting agreement likely to be presented to the Courts for a formal consent order to be made.

“Collaboration and mediation is the best way to face up to the pain of separation. Most couples find it’s a way to get things sorted out more quickly and easily, and helps to put children’s interests first,” said Name. “The actual process of divorce has become much simpler in recent years, and many couples are taking a DIY approach, but involving a specialist mediator, and having guidance over your rights, can make the difference between a good or bad break-up, particularly where children are involved, and that’s true for cohabiting couples too.”

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Can Grandparents charge you for babysitting?

Childcare is, after your mortgage or rent payments, one of the biggest family expenditures. For working parents, finding someone they can trust to look after young children while they work can be incredibly difficult, and very expensive. While the government has increased the availability of free childcare to parents from 15 to 30 hours a week, there are still families who either don’t qualify for free childcare, or who need more cover to be able to continue working.

So who do you turn to? Often, it’s the grandparents who take up the slack. But should you be paying your parents to look after your children, or is it just something that grandma and grandpa do for free?

Spending time with the grandkids

If babysitting the grandchildren is an occasional request, then it’s more than likely that grandparents will jump at the chance to spend some quality time with the little ones without charging. However, if you are regularly asking grandparents to look after the kids (as in several times a week), then it may get to a point where payment is discussed.

A lot of grandparents are reluctant to charge for babysitting duties, not only because of the complex family issues it can cause, but also because they are worried that any payment may impact on their state pension. However, grandparents may well be better off if they do charge for babysitting, as they could also be eligible to receive National Insurance credits to balance out any reduction in your state pension. It could be worth around £230 a year, but only a tiny minority of older carers are claiming the credits.

This government scheme, known as Specified Adult Childcare Credits, was introduced five years ago, specifically to help grandparents who took on the mantle of child carer so that parents could return to work. It wasn’t heavily publicised, and as a result thousands of grandparents are still missing out on a potentially lucrative income. If you are caring for a child under 12 then it is worth investigating whether you would be eligible for the ACC payments.

A physically demanding job

Any parent will tell you that looking after boisterous, energetic children all day is tough going. If you’re physically fit it can be hard enough, but if you’re older and less mobile then running around after a four-year-old in full meltdown mode can be almost impossible.

It also costs money to look after a child all day long, with extra food bills and entertainment costs. For older relatives already on a reduced income, even a small increase in their daily outgoings can have a big impact.

Family disputes

Knowing whether or not to charge your own relatives for childcare can be a contentious issue, and if handled badly can lead to family breakdowns. If that happens, and you can’t resolve the situation then it may be a good idea to bring in an outside mediator, who can offer a balanced and fair appraisal of the situation. Family law experts can give you all the information you need to come to a resolution that keeps everyone happy.

Childcare and tax

If you start charging your children for childcare services, then remember that you may have to pay tax on your income. You may also need to look at things like how earning an income (even a small one) for looking after your children could affect your home insurance policy, whether you have to register as self-employed, or if you actually breach the earnings threshold for someone drawing a pension. This can be a complicated minefield, and if you get it wrong then you could end up losing part of your pension income, or even face a tax bill.

If you’ve agreed to provide childcare for a fee then talk to a financial expert or a legal representative specialising in tax law to make sure you’re paying the right amount of tax and NI. Parents who rely on the grandparents to provide childcare and are paying them for that service, may also have to look at how it affects state income such as family tax credits and childcare allowance payments.

Inheritance tax for private clients

Christmas gifts that keep on giving

Christmas shopping usually means a visit to the high street or browsing online retailers, but the season of giving can be a good time to make sure you’re maximising your opportunities for inheritance tax reliefs, whether to family, friends or charity, while spreading some seasonal cheer.

While larger gifts may be taken into account, anyone can make smaller gifts or gifts out of surplus income without it being taken into account for inheritance tax purposes, as long as some simple rules are followed.

Broadly, these come under two headings: gifts where the allowance is automatic if the gift fits the rules, and those where the exemption must be claimed after death, such as gifts out of surplus income. The automatic allowances include gifts to charities or political parties, gifts on marriage or civil ceremony, an annual exemption of £3000, and small gifts up to £250 per person.

Any number of so-called small gifts can be made each year, of up to £250 per recipient, with no limit on the number of recipients, as long as no one person receives more than £250. If anyone receives more than £250, then the whole small gift exemption in relation to that recipient is lost for the year, not just the excess.

Alongside, the annual exemption of £3000 can be used to make gifts to one or more people. There’s an added benefit if the allowance isn’t fully used in any year, as any remaining allowance can be carried forward one year. It cannot be combined with the small gift exemption for any one individual.

In any tax year, you can also give a cash gift when a friend or family gets married or has a civil ceremony. The limit is £5000 for a child and £2500 for a grandchild, or £1000 for those outside immediate family, whether a friend, niece or cousin.

You can also make payments to help with another person’s living costs, such as an elderly relative or a child under 18.

And if giving to charity is important to you at Christmas, it’s worth knowing that gifts to charities and political parties will not count towards the total taxable value of your estate. You can also cut the Inheritance Tax rate on the rest of your estate from 40% to 36%, if you leave at least 10% of your ‘net estate’ to a charity.

“These allowances are automatic, unlike the gifts from surplus income, but even so, it’s a good idea to track any gifts as it will help to ensure that you keep inside the rules, and makes it easier in any later dealings with HMRC,” said wills and trusts expert Caroline Carter, of Oxley & Coward Solicitors LLP.

When it comes to relief on gifts from surplus income, record-keeping is essential as the gift will only qualify for exemption if it is part of a regular pattern of giving, and if you can demonstrate that you maintained your normal standard of living after making the gifts and all other usual expenditure.

She added: “To make gifts from surplus income, it’s essential you record your intention in writing, setting out that you mean to make the gifts regularly, and then keep a record of income and outgoings to demonstrate the money you gave was indeed out of surplus income. It doesn’t need to be too complicated, just a simple log of your income received during the year and the amount spent, figures which could come from monthly and annual summaries on bank account statements.”

The exemption for gifts from surplus income must be claimed after death, by the executors of a person’s will, and can be used for any regular payments, such as monthly contributions to a grandchild’s savings account or payment of school fees, or making regular gifts on special occasions such as birthdays and Christmas.

Any other gifts made, unless they go into a trust, will be potentially exempt transfers (PETs), which become exempt if you survive the making of the gift by seven years. Otherwise, the value will be brought into account for inheritance tax purposes.

Said Caroline Carter: “Making gifting part of an annual review is a good idea as the rules do change from time to time, and it’s good practice to check back what you’ve done each year, just as it’s important to keep your will up to date as circumstances change.

“And if you’ve reached the end of inspiration on gift ideas for your spouse or civil partner, it’s worth remembering that you can give them as much as you like during your lifetime, as long as they are living permanently in the UK.

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Can your boss make you work at Christmas?

With just one month to go before Christmas, we’re all looking forward to a few days off with family, friends, or just curled up with a good film and a loved one for the day. However, life still goes on (even on Christmas Day) and there are plenty of people who work while everyone else is tucking into the turkey and stuffing. If you’ve already planned your journey to see the in-laws and the boss suddenly asks you to work on Christmas Day instead, can you say no?

It all depends on your contract

This year, Christmas Day falls on a Monday, so both Monday 25th and Tuesday 26th (Boxing Day) are classed as Bank Holidays. While the majority of employment contracts recognise Bank Holidays as part of your holiday entitlement and are usually classed as paid leave days, that is not automatically the case.

Employees do not have a legal entitlement to paid leave for a Bank Holiday, which is why it is important to check your contract at the time of signing to clarify exactly what Bank Holidays are classified as in your agreement with your employer. Paid public holidays, such as Christmas Day, can be included in your statutory 5.6 weeks of holiday.

However, it will depend on what sector you work in, and whether your job is regarded as ‘critical’. For example, those working in the health sector’s front-line operations such as hospitals may be required to work on Bank Holidays (including Christmas) as part of their shift agreements.

If an employer has to restrict annual leave allowances over the Christmas period then they must state that in the initial contract of employment. The most important thing, as with any dialogue between workers and management, is to keep the lines of communication open, and to plan ahead as early as possible. If you work in a sector where Christmas working is normal, then suddenly asking for Christmas off a week before the event is probably not going to go down well with your boss (or your workmates).

I’ll just ‘pull a sickie’

If you’ve been asked to work over Christmas and you really don’t want to, then it may be tempting to try and get around the issue by calling in sick. However, bear in mind that your company’s sickness policy will still apply to the festive period. If your boss starts to notice a pattern of sick leave then that may be the trigger for an investigation into your attendance record and could result in formal proceedings. So ‘pulling a sickie’ probably isn’t a good idea over Christmas, and no, a hangover doesn’t count as a justified sickness, either…
Should you be paid more?

Your hourly rate is usually set when you join a company, and will depend purely on your contractual agreement with your employer. Some companies will pay extra for unusual shifts, such as during Christmas Day or Boxing Day, but again a higher hourly rate is not an automatic right. What an employer is not allowed to do, though, is pay you less than you would normally receive for working a normal shift.

You may be able to claim additional expenses if you have to make special transport arrangements to get into work on a Bank Holiday, although again this will depend purely on the agreement in your employment contract.

Shift swapping

Within some organisations, employers may not be bothered who works on Christmas Day, as long as the shift is covered. To that end, you may be able to shift-swap with a colleague to make sure that there is adequate coverage during the Bank Holiday. However, don’t assume that this is an acceptable practice without checking with your HR department first, as you could end up in breach of your contract.

Christmas Day is when everyone wants to be at home with their feet up. But life does go on, and businesses do operate over the festive season. If you feel you’re being put under undue pressure to work, or suspect that your worker’s rights or contract of employment may have been breached, then talk to a legal representative specialising in employment law, who will be able to help resolve the situation.

Inappropriate behaviour in the workplace

Lessons for business from the #metoo headlines

Following the allegations of sexual misconduct against Harvey Weinstein and other leading figures, businesses need to make sure they have clear policies to inspire the right culture in their workplace.

The initial revelations about the Hollywood mogul inspired many to open up about their experiences of sexual abuse and harassment, flooding social media with millions of posts and tweets using the hashtag #metoo.

That response was reflected, also, in figures from a ComRes poll on behalf of the BBC, which showed that more than half of all British women and a fifth of all men had experienced some form of sexual harassment in their place of work or study.

Such harassment may come in many forms, but includes any unwelcome sexual advances, whether by touching, standing too close, asking for sexual favours, or displaying offensive materials. Employees are protected in the workplace by the Equality Act 2010, which makes it unlawful for an employer to allow any job applicant or employee to be subject to any harassment related to sex or of a sexual nature.

The research commissioned by the BBC showed that many who had suffered sexual harassment at work could not face the process of reporting an incident. Of those who said they had been harassed, 63% of women and 79% of men said they didn’t report it to anyone.

Said employment law expert Amy Cusworth of Oxley & Coward Solicitors LLP: “Many employees will not report incidents because they’re embarrassed or ashamed, or may feel they will not be believed, as it is usually one person’s word against another. Any complaint must be brought within three months and the individual must be prepared to prove the conduct was ‘unwanted’.

“This makes it difficult, as there are often circumstances where those being harassed may feel a passive position is the safest way to handle the situation, so the other party may argue it was mutual. Similarly, different people may have different ideas of what is acceptable; someone might think it’s ok to make racy jokes or engage in ‘banter’ or flirting, where the other may find it offensive or humiliating.”

Resources published by the Equality and Human Rights Commission and conciliation service ACAS recommend that every business has a written policy, setting out how harassment at work is unlawful and making sure all staff understand that such behaviour will not be tolerated and may be treated as a disciplinary offence. Examples of what constitutes unacceptable behavior may help people understand the boundaries, particularly if they are relying on what may have seemed acceptable in previous years, together with guidance to staff on how to respond and deal with such behaviour. Then, most importantly, a clear process for what steps the organisation will take if anyone feels they have been subject to any form of harassment, including a safe environment for reporting and handling any complaints.

She added: “However large or small the company, top of the agenda should be a focus on the best possible attitude towards equality and diversity in the workplace. With research such as the BBC’s showing that it is usually a junior member of staff experiencing the harassment, management should lead the way in demonstrating that everyone, from the top down, has zero tolerance to inappropriate behaviour. Staff should be confident they can report any concerns, knowing they will be heard in a supportive, positive way.

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Budget and tax law

Chancellor announces get-fit regime

An extra £3 billion to prepare for Brexit over the next two years and a vision of an economy that is ‘fit for the future’ were at the heart of the Chancellor’s Autumn statement.

And despite downgrading growth and productivity forecasts, after public sector net borrowing hit £8bn in October, Philip Hammond announced a raft of new investments. Alongside the £3bn set aside for Brexit, he plans to inject £6.3bn into the NHS and £500m to support emerging technological development, such as Artificial Intelligence.

Growth forecast for 2017 downgraded from 2% in March’s budget to 1.5%

Housing is also in the spotlight, with £15.3 billion new financial support for house building over the next five years, with the Government setting aside £1.2 billion to buy land and £2.7 billion for related infrastructure. The Government also announced plans to create five new so-called ‘garden’ towns, and a headline-grabbing cut in stamp duty for first time buyers.

Stamp duty is currently paid on property purchases over £125,000, with a ‘slice’ tax where buyers pay at the relevant rate for each band, rather than a flat rate across the whole amount. With immediate effect, stamp duty is abolished for first-time buyers on properties worth up to £300,000, or on the first £300,000 of a property worth up to £500,000.

Said property expert Dawn Cherry of Oxley & Coward Solicitors LLP: “The change in stamp duty has caught most of the attention. It’s certainly a move that will be welcomed by first time buyers, but does add yet more complexity to the application of this particular tax, where we already have different rates for second home owners and landlords.

“Buyers need to read the small print before rushing out to make an offer, as there are clear distinctions on who is eligible. It will not apply if any property has been owned at any previous time, whether here or anywhere else in the world, and it must be the only or main home for the buyer. In a joint purchase, everyone would need to qualify as a first-time buyer. Buyers will need to check out the detail with their solicitor, and the benefit must be claimed when the Stamp Duty Land Tax return is made to HMRC during the purchase process.”

For the NHS, £3.5 billion of new funding has been made available for upgrading NHS buildings and improving care and a further £2.8 billion has been set aside to support improvements in A&E performance and to reducing waiting times for patients.

For individuals, the basic-rate income tax threshold will rise to £11,850 in April 2018, up from £11,501, and the higher rate threshold will rise from £45,001 to £46,350. Alongside, the National Living Wage, paid to those aged 25 and over, will increase from £7.50 per hour to £7.83 per hour from April 2018, while the National Minimum Wage will also increase:

21 to 24 year olds 18 to 20 year olds 16 and 17 year olds Apprentices
£7.38 per hour £5.90 per hour £4.20 per hour £3.70 per hour

In areas focused on supporting small business, the switch to link business rates to the Consumer Price Index, instead of the Retail Price Index, has been brought forward by two years, with the Government saying businesses will save £2.3bn as a result. There will be retrospective legislation to tackle the so-called ‘staircase’ tax, which had affected the business rates bill for many small businesses in communal offices, with those having more than one office linked by a communal lift, corridor or staircase being charged more.

Also, the VAT threshold at which registration is required will remain at £85,000, but alongside there will be a crack-down on VAT evasion online, with greater powers to make online marketplaces responsible for the unpaid VAT of their sellers.

Other initiatives to tackle avoidance and evasion risks will see new technology for HMRC; new global rules to force the disclosure of certain offshore structures to tax authorities; and a change to international corporate tax rules to ensure globally-operating digital companies pay a fair amount of tax.

She added: “As with the Chancellor’s previous statements, his eye is very much on managing the economy through the coming Brexit negotiations and the country’s exit from the European Union.”

Web site content note:
This is not legal advice; it is intended to provide information of general interest about current legal issues.

HS2 – The fast track to Compulsory Purchasing

We’ve had quite enough to think about lately, what with Brexit, the pre-Christmas furniture sales, and the first of the autumn storms battering our shores. But there’s one issue that, for many people, is much more immediate, and that’s the potential loss of their home to the much-lambasted HS2 train link. This controversial project was given the green light last year, and is all set to connect the Northern Powerhouse to London in a few years’ time.

The trouble is that the HS2 plans keep changing, leaving householders and business owners concerned that a new day could bring a compulsory purchase order through the post, and take away their home or place of work overnight. A prime example of this is the brand-new Shimmer estate in Mexborough, South Yorkshire, which could be partially or completely demolished if new plans for the route go ahead. The estate has only just been completed, and now up to 200 homes are at risk.

The case highlights the murky world of CPOs or Compulsory Purchase Orders. So what are they, and how do you respond if you get one through the post?
What exactly is a CPO?

A CPO lets public bodies (including government departments like the Department of Transport) force homeowners and land owners to sell their property if it lies in the pathway of a proposed development. That could be anything from a new motorway to an airport runway, a new hospital, or, as in this case, a new train line. CPOs can be imposed by a wide selection of organisations, from English Heritage to the local council. However, CPOs have to be ‘for the public good’ and not for personal profit or gain.

Does a CPO force me to sell?

In short, yes. However, you don’t have to rush out and sell your property immediately, and the long and complicated process could take years, not weeks. Even then the application may be rejected. For instance, the HS2 project does not have the power to send out CPOs until it has Royal Assent, which could take as long as 10 years to complete. What often happens, though, is that home owners are offered a compensation package and are encouraged to sell their property voluntarily.

How much will I get?

If you are forced to sell your property then you must be paid the current market value (whether or not that’s more or less than you originally paid), plus an additional 7.5-10% in compensation. There are also other costs you can claim, such as ‘disturbance compensation’ that can cover some of your buying costs for a new property, including survey fees and consultancy costs.
What if I just ignore it?

If you simply ignore any letters or correspondence concerning a CPO you could quickly find yourself on the wrong side of the law. It’s important to respond to all correspondence, and to make sure you have a legal expert on your side to help guide you through the process.

Objecting to a CPO

You can object, but be prepared for a long and potentially expensive battle. When you receive a CPO, the organisation trying to acquire your property must disclose all contact details of the appropriate Government minister in charge of the process (so for HS2 it is primarily the Minister for Transport). Once again, top of your to-do list has to be to get proper legal help, either through the Institute of Chartered Surveyor’s CPO helpline, or your legal representative.

You can also object in person, or even try to negotiate a better price for your property, but be prepared to end up with less rather than more. And unless you’re a legal expert yourself, make sure you have that all-important representation and legal advice on hand before entering any negotiations.

Family Law and the divorce process

Family finances make divorce negotiations increasingly complex

Divorce rates are on the rise, according to the latest statistics, and with the increase in the value of family assets, couples should do more to face up to financial affairs during the good times according to professionals.

According to the latest figures from the Office for National Statistics (ONS), the overall rate of divorce for opposite-sex couples has increased for the first time since 2009, at 5.8% in 2016, with men and women aged 45 to 49 recording the highest number of divorces.

Women continue to be more likely to petition for divorce in opposite-sex marriages, at 61% in 2016, and this trend was reflected among same-sex couples, with female couples accounting for 78% of such divorces.

The most common ground for divorce continues to be unreasonable behaviour, with 36% of all husbands and 51% of all wives petitioning for divorce on this ground.

And although the overall number of divorces remains well below its 2003 peak, experts say that the process of divorce, negotiating over finances and family arrangements, is becoming ever more complex, and suggest couples should be more open to making agreements and understanding finances from the outset.

The increased value of family assets means more is at stake, particularly for middle-aged couples, when couples come to hammer out a fair division after a marriage breakdown. Wealth statistics from ONS show that by 2014 half of all households had total wealth of £225,100 or more.

And although family property tends to be thought of as the biggest asset, the figures show private pension wealth was the largest component of aggregate total wealth. Values have surged thanks to stock market increases, and changes in legislation have opened the door to greater flexibility in accessing pension pots, making them increasingly important in divorce negotiations.

As a result, many more partners are seeking a share of pension arrangements on divorce. Ministry of Justice figures show a 43% increase in pension sharing orders, at 11,503 in the 2016-17 tax year, compared to 8,027 in 2015-16. Pension sharing orders are issued by the court, setting out the share of a pension an ex-wife or husband will receive from their former spouse.

In recent years, spouses divorcing after a long marriage have come to expect an equal share of all assets, irrespective of any decision on needs, and whether or not one was the home maker.

But a recent Court of Appeal ruling in Hart v Hart, saw a wife awarded £3.5m, out of total resources of just under £9.4m, in a decision which some have interpreted as a shift in attitude. The judgement gave greater weight to the pre-marriage wealth of the husband, despite a 23-year marriage, with the wife’s settlement based on a calculation of needs, rather than equal sharing of assets.

Said family law expert Sarah Scott of Rotherham Town-based solicitors Oxley & Coward Solicitors LLP. “This case was a complicated one, and it is unusual to see pre-marital wealth being given such consideration after a relatively long marriage, during which finances may have mingled.

“But, together with the increasingly complex finances of those embarking on second or subsequent marriages, it’s an outcome that may encourage more new couples to seek pre-nuptial agreements, or sometimes post-nuptial. While such agreements are not automatically legally binding in England and Wales, they are likely to be upheld, if done properly, following the 2010 landmark case of Radmacher v Granatino. It’s a way of clearly setting out what each person has brought into the relationship, in case of any later division of assets and final payout.”

She added: “What is important is open communication and understanding of financial affairs, and making such an agreement can help couples to have a more frank discussion at the outset. Often, one partner may take the lead on finances, or some couples may just avoid it, as they think it’s a tricky topic. But understanding what you have today, in a positive, settled relationship, may mean you can better cope if the worst happens and things become difficult in future.”

Hart v Hart [2017] EWCA Civ 1306 (31 August 2017)

Radmacher (formerly Granatino) v Granatino [2010] UKSC 42

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Employment – Beat the Workplace bullies

Nobody should ever have to start their working day worrying about being harassed, bullied, or intimidated in the workplace. We spend nearly a third of our lives at work, so they should always be a place where we feel safe. Not only does bullying in the workplace drive down productivity, but it can become so bad that it leads to conflict that destroys morale, triggers mental health issues such as anxiety and depression, and even forces good workers to find another position simply to get away from the problem.

However, running away from an unpleasant and intimidating workplace because of the actions of a bully doesn’t make the problem go away – it simply makes it someone else’s concern. You may have escaped your bully’s attention by leaving, but what happens to the next person who fills your position once you’ve gone?

Shining a spotlight on workplace harassment

Bullying in the workplace is unacceptable at any level, whether it’s low-level comments intended to undermine and intimidate you, or serious sexual harassment. The latter has hit the headlines recently, as a result of the revelations concerning Hollywood producer Harvey Weinstein. While the details are disturbing, what it has done is made it easier for thousands of women (and men) to come forward and say #MeToo. The Me Too campaign has been going for some time, but the latest shocking revelations have given it new momentum, and made it easier for anyone suffering from sexual harassment and bullying in the workplace to stand up and be counted.

The law’s take on harassment in the workplace

There are strict laws governing how we behave in the workplace, and every organisation, no matter how big or small, must have a clear set of guidelines in place regarding complaints procedures in the event of harassment. But it is still a daily problem for thousands of people.

If you’ve been the victim of bullying or workplace harassment, here’s a quick guide to your rights, your boss’s duty of care towards you, and what you can do to tackle the problem.

Bullying, or harassment as it is referred to in law, is unlawful under the Equality Act 2010. There are clear definitions of bullying or harassing behaviour, which include:

Unfair treatment
Targeting a single individual and constantly undermining them
Preventing a person from taking up training opportunities or any form of career advancement or promotion
Spreading malicious rumours or lies about a person.

Bullying doesn’t have to be face-to-face, either. It can also happen by letter, email, or phone. However, if someone bullies or harasses you by letter or email, then you immediately have an advantage if you want to pursue a case, as you have written evidence of their actions to present at any hearing or tribunal.

Legal definitions

While bullying is not against the law (unless it involves physical intimidation or unwanted sexual contact), harassment certainly is. Harassment is defined as unwanted behaviour related to:

Age
Sex
Race
Religion or belief
Sexual orientation
Pregnancy and maternity/paternity
Gender (including those who have undergone gender reassignment or identify as non-gender-specific)
Whether a person is married or in a civil partnership

What can you do?

If you feel that you are the victim of workplace bullying or harassment, the first thing to do is to try and solve it informally, by having a private conversation with a manager, your HR department, or a trade union representative. If you feel that this isn’t working or that you cannot approach someone within the working environment, then you can talk to organisations such as Citizen’s Advice.

Getting legal help from your solicitor

If the problem is more serious then you may have to consider making a formal complaint, or even contacting the authorities in the event of any physical or sexual harassment. In this case you may need to talk to a solicitor who specialises in representing workers in harassment cases. They will be able to look at your case and advise you on the best course of action – whether that’s to take the case to an employment tribunal or, in more serious cases, to contact the Police.

What are your employer’s responsibilities?

All employers have a duty of care to ensure the workplace is not only safe, but that workers are not subject to harassment of any kind. Your employer is liable for any harassment you may suffer even if they are not the root cause of it. Basically, the buck stops with your boss, so if there is a problem, it’s in their interests to deal with it quickly and effectively.

While you may initially feel uncomfortable about approaching your manager or boss with a complaint, the truth is that they will be keen to help resolve the matter quickly. Harassment and bullying can have a negative effect on the reputation, efficiency, and the profitability of a business.

Don’t just ‘put up’ with workplace bullying

There is no reason why anyone should simply ‘put up’ with a workplace bully. People often simply say nothing because the person doing the bullying is higher up the ladder than they are and are in a position of authority, or they are simply frightened that speaking up will jeopardise their job.

Remember that bullying doesn’t just make you feel miserable – it can have a serious impact on your health too. With millions of working days lost every year through stress and anxiety, both your mental and physical health are at risk if you are being bullied day in, day out. There is a network of help out there that you can turn to, including your solicitor.

Lasting Power of Attorney – Identity Security

Selfie shots signal end to informal financial management

International payment processor Visa is launching a platform to allow banks to integrate biometric security that will use selfies, fingerprints or voice records to approve purchases in the drive against fraud.

In the first six months of 2017, over £500 million in attempted card fraud was prevented, with actual fraud losses coming in at just under £290 million1. And while the figures were 11% lower than the same period in 2016, following coordinated action by financial institutions and the police, tackling fraud remains a top priority for the sector.

As well as hitting the fraudster, the increased use of biometric identification will also affect those who allow family or friends to informally manage their financial affairs, and professionals are encouraging everyone to get formal arrangements in place, that can work alongside such safeguards.

Said Jayne Jackson with Rotherham based Solicitors Oxley & Coward Solicitors LLP: “There are many reasons why you may want to allow someone else to manage your finances. The obvious situation is if you are elderly or ill, but it’s just as likely to be needed by someone undertaking long term travel or working overseas for a corporate employer. Even day-to-day management of family finances may see couples sharing access to their single named bank accounts.

“But it’s not a good idea to have informal arrangements in place, even when it’s family left in charge, as you’re likely to be breaching the terms and conditions of your account, and leaving yourself exposed. Combined with stricter requirements by banks and others, it’s something that should be dealt with through formal agreements.”

By using a Lasting Power of Attorney – known as LPAs – people can appoint someone to look after their financial affairs on their behalf. While many imagine these are something for the elderly to consider in case of dementia, they have an increasingly important place, for asset protection and to manage today’s strict security procedures.

She explained: “By making an LPA and appointing an attorney to manage things for you, they will have power to enter into any transaction, unless you have specifically forbidden it, so they will be able to deal with investments and to write cheques.
“But the important consideration is choosing the right person to be an attorney. So, think about how well they look after their own finances, how well you know them and how sure you are that they will make the right decisions for you. As an added precaution, you can appoint two attorneys who must both be involved in each decision, although that can make transactions more complicated if they must both be involved at the same time. Another option is to appoint a family or friend to act, but also appoint a professional, and they can undertake regular checks on how matters are being handled.”
As well as Property & Financial Affairs LPAs, used to appoint someone to look after your finances, there are also Health & Welfare LPAs, used to appoint someone to deal with issues such as where you live and medical treatment if you become mentally incapable.

Any LPA must then be registered with the Office of the Public Guardian, which is the administrative arm of the Court of Protection, before it can be used, and involves a fee of £82 per LPA. The registered LPA can then be submitted to any institution such as a bank or utility provider so they can deal directly with any appointed attorney named in the LPA.

She added: “LPAs are often thought to be for older people, but they can be just as important when you are younger – for example, it can be invaluable if someone is involved in an accident which leaves them incapable of managing their affairs, or if you are travelling or working out of the country for long periods and unable to manage your affairs directly.”

The other advantage of an LPA is that without one, where someone has become mentally incapable, for whatever reason and at whatever age, their financial and personal affairs will have to be managed by a deputy appointed by the Court of Protection. This is a slow and expensive business for most families, as relatives may be forced to get permission from the Court for each transaction that they carry out. The deputy is also required to produce annual accounts, and there are legal and Court fees throughout the process.

1. http://www.actionfraud.police.uk/news/latest-industry-data-shows-fall-in-financial-fraud-sep17

Web site content note:
This is not legal advice; it is intended to provide information of general interest about current legal issues.

Converting Commercial Property into Residential Housing

Commercial property development (where previously commercial buildings are transformed into residential units) is big business. An old factory bought for £250,000 and converted into 10 residential units, each valued at £150,000, could net a massive profit for the developer willing to invest in converting the building. With the government actively encouraging commercial to residential conversions, and with plenty of old offices, shops, and industrial properties up for grabs, it’s a smart business to get into.

In 2013 the Town and Country Planning (General Permitted Development) (Amendment) (England) Order introduced what is known as ‘Class J’ development, which took a lot of the restraints off these kinds of developments. It introduced ‘implied permission’ for properties being used within Class B1(a) (offices), to be converted into Class 3 (dwelling houses), without the need for full planning applications.

With a surplus of old office buildings and a constant and rising demand for affordable housing, it was seen as a smart move by the building industry, but came up against certain criticism from other quarters who saw it as an erosion of the planning laws.

However, Class J allows developers to make the most of previously unusable and low value property, often in prime central locations. If you are thinking of moving into property development, here are some top tips for maximising your success rate, and staying on the right side of the law, too.

1. Does the property qualify for Class J development?

There are a number of pinch points that could block your plans before they’ve even got off the drawing board. While the 2013 Order took the brakes off development for office-to-residential plans, you’ll still need to check if:

• The property was used within Class B1(a) definitions immediately prior to 2013
• Is not a Listed (grade I or II) building or monument
• Is not part of a safety hazard area or forms part of a military explosives storage area

While you may not need permission for a change of use if the building was previously classified as an office, you will need permission if it was a warehouse or any other kind of commercial building. You cannot convert a building under Class J regulations if it was used for anything other than offices. It’s also important to note that some types of offices are exempt from Class J classification, including estate agents or accountants’ offices, so double check before you start knocking down walls.

2. Access

The status of a building is not the only thing that dictates whether it can be converted. One key aspect to consider is access. Commercial property in the very centre of a town may be desirable, but if there is limited access (for example, it’s in a pedestrianised area), then logistics such as getting materials on-site may be challenging. Class J doesn’t mean you have instant permission to get started on a development, and the local authority may challenge the plans based on accessibility issues alone.

3. Change of use vs conversion

While Class J permits change of use without planning permission, the fact that the building has to be converted still means that planning permission may have to be sought. If you need to redesign the layout of a building or extend it then you may need to seek planning permission, even if the building falls within the Class J guidelines.

4. Removal of hazardous material

A lot of commercial property built in the 1960s and ‘70s has one very big problem – asbestos. Its removal and disposal is strictly regulated, and can be extremely costly. If you’re a first-time developer then make absolutely sure that you don’t have to factor the removal of hazardous material into your costs, or it could effectively wipe out any profit margins at a stroke.

5. Additional costs

Conversions can be subject to additional costs such as the Community Infrastructure Levy (CIL). This is based on the increase in floor area (and can be payable even when there isn’t an increase). CIL is designed to generate income for local authorities to put infrastructure in place that will help the development of communities. It’s advisable to double-check as to whether your conversion is subject to CIL by talking to your solicitor and local planning authority.

6. Covenants and deed guidelines

Even if your building seems to tick all the right boxes for a commercial to residential conversion, there is one last check that you need to do before you start work, and that’s the property’s title deeds. It’s essential that you check thoroughly to make sure there are no covenants restricting a property’s use to purely commercial operations (which is often the case with old inns and pubs), or that make its conversion into residential property impractical. With older properties in particular, it may be worth asking a conveyance specialist to dig back through the records and double check that your 21st century development isn’t going to be scuppered by an obscure clause written a hundred years ago.

Avoiding Septic Tanks Blockages When it Comes to Selling

This year’s housing market has been characterised by slumping prices and sluggish sales in many areas, posing a challenge to would-be sellers looking to move on.

And for those who are not connected to mains drainage, generally in rural areas, there’s an added challenge, with many unaware of stricter rules regarding septic tank systems and soak-aways, which must be dealt with as part of the conveyancing process.
According to Dawn Cherry, property law expert with Rotherham-based firm Oxley & Coward Soliciors LLP: “Property owners with a septic tank or small sewage treatment plant could find themselves with a headache if they aren’t up to date on their responsibilities and meeting the latest legal requirements.”
Those are set out in the Environmental Permitting (England and Wales) Regulations 2016 and the Small sewage discharges in England: general binding rules. For homeowners, the important points relate to the amount of waste being discharged, and where it is being discharged.
If it’s domestic waste, you can discharge up to 2 cubic metre per day to the ground via a septic tank or small sewage treatment plant. If it’s discharging to a river, stream or other surface water, then up to 5 cubic metres per day is permitted, but only if a small sewage treatment plant is being used.

Any septic tank discharging to surface water will have to be replaced or upgraded by the end of 2019, or when the property is sold, if that happens earlier.

The Environment Agency has provided a simple calculator to enable homeowners to work out their estimated daily discharge, which is based on the size of the property.

If a system is being installed or upgraded, then it must be to British Standard BS EN 12566 and both planning permission and building regulations approval will be needed. Approval will not be given if public sewers are accessible within 30 metres.
Dawn added: “These approvals apply to any installations from 2015 onwards, so any system that has been upgraded in that time without planning permission and building regulations approval would have to apply for permission retrospectively, and that’s going to cause delays and problems if it is only discovered during the sale process.

“When selling, the home owner is legally obliged to tell the purchaser if sewage is being handled by a private drainage system, with a written notice that sets out details of the waste water system, its location and the maintenance requirements. There’s a legal responsibility to ensure the system is in good working order and does not cause pollution, so it makes sense to check everything is OK on a regular basis, and certainly before putting the property on the market. It is also important to be sure that all rights and obligations are in place if any part of the system is located on someone else’s property, as any gaps would be thrown up as part of the conveyancing process.”

The discharge limits do not apply to cesspits, as they are self-contained tanks, but cesspits must be maintained and emptied regularly by a registered waste carrier.

Web site content note:
This is not legal advice; it is intended to provide information of general interest about current legal issues.

Tribunal Fees Dropped After Court Ruling

A government beset by policy U-turns has faced yet another one recently, as the Supreme Court ruled that employment tribunal fees were ‘inconsistent with access to justice’, and therefore unlawful. Not only has this caused red faces at the Ministry, but it could cost the government’s coffers too – potentially up to £32million in repayments to workers intent on getting justice.

The challenge to the charges for bringing an employment tribunal – £1,200 in many cases – was brought by trade union Unison. Their argument was that the fee was preventing workers, especially those on lower incomes, from getting justice in cases of unfair dismissal for the last four years. The government introduced the charge in 2013, in an attempt to cut the number of ‘malicious and weak cases’. However, the government’s own statistics showed a marked drop-off in the number of tribunals brought of around 73%, a much higher percentage than could have been reasonably expected.

Unison claimed that this demonstrated that, while malicious or weak cases may well have been reduced, so too had the number of justifiable claims, based purely on the fact that lower-paid workers (those most often exploited in the workplace) were simply unable to afford the fee.

Unison General secretary Dave Prentis said that the government had been proven to be acting unlawfully by introducing the charges. “These unfair fees have let law-breaking bosses off the hook these past four years, and left badly treated staff with no choice but to put up or shut up,” he said. “We’ll never know how many people missed out because they couldn’t afford the expense of fees.”

Recouping the fees

The government has already said that it will reimburse all fees if it was found that any claims had been unlawfully charged for bringing a case. Currently, the Treasury has put aside up to £27million, but the figure could easily climb above that. And while this may be great news for claimants, it’s not so good for taxpayers, who will end up footing the bill.

Tribunal fees have ranged from £390 to £1,200, with discrimination cases costing more because of their complexity. This was found to be discriminatory in itself by the Supreme Court, as it was mostly lower-paid women workers (often only working part-time hours and therefore on much lower incomes) that brought discrimination cases.

What next?

The ruling also means that those who may have been put off the idea of bringing a case based purely on the cost can now proceed with a little more confidence, knowing that justice is not going to hit them in the pocket. With the Citizen’s Advice Bureau saying that they had helped nearly 350,000 people with employment issues in 2016 alone, that could mean a sudden rash of new cases as workers feel more able (and more willing) to seek out justice.

For those owed money, it could be a bit of a waiting game, though. The government is not known for reacting quickly in cases like this, but with such a bright spotlight being shined on the situation not only by the media but by unions too, it’s probable that reimbursement will be swifter than usual, as long as those eligible put in their claims quickly. This effectively could turn into the government’s very own ‘PPI’ scandal, and legal experts are hoping that lessons have been learnt from that situation and will guide how the government responds.

Advice from legal experts is that claimants should contact their mediation or tribunal representative (whether that’s a union mediator or solicitor) to ensure they recoup their fees as quickly as possible. And for those who may be thinking of bringing a case, the options for obtaining justice, particularly in discrimination cases, just got a whole lot cheaper.

Subsidies after Brexit: will the green pound start to wither?

This green and pleasant land is facing some major changes. While the news has been focused on the impact of Brexit on urban industry and businesses like banking and finance, it is the UK’s farmers who are preparing themselves for some of the biggest effects of our split with the EU.

While nobody is arguing that the Common Agricultural Policy has its flaws, it has meant that the UK’s farming industry has been heavily subsidised to the tune of £3bn thanks to CAP. Once we leave the EU, that funding will end. So what, if anything, will be replacing it?

Does it really matter?

Farming is one of the UK’s biggest commercial sectors, and is responsible for billions of pounds worth of income into the country’s economy. It also provides employment for a significant sector of the population, and while the numbers may not be high compared to other industries, employment levels in rural areas (which accounts for more than 60% of the UK) are proportionally dependent on farming and agriculture. So yes, this is an issue that matters a great deal to a very large number of people, some of whom can trace their connection to the land back through several generations.

It is also becoming more of an issue, as British consumers ask where their food will come from post-Brexit if trade agreements aren’t put in place quickly with EU suppliers and partners.

Turning off the CAP tap

However, farmers will have to deal with considerable changes once the fiscal tap is turned off in 2022. While Environment Minister Michael Gove has already tried to reassure farmers that the green pound will not collapse after Brexit, he has indicated that any subsidy payments provided by the UK government as a replacement to the CAP cash-cow will depend not on acreage, as was the case with CAP, but on other aspects such as delivering benefits for nature.

The Brexit deal has given DEFRA the opportunity to reassess how the UK farms. That means reviews on everything from agricultural policies, developing green-field sites, fracking, biodiversity, the use of chemicals, and animal welfare. And while the government is initially promising to match the £3bn in subsidies that farmers would have received from the EU, there may well be a lot more in the way of restrictions and provisos before farmers get their cheques.

Farming good practice

“CAP rewards size of land holding ahead of good environmental practice, and all too often puts resources in the hands of the already wealthy rather than into the common good of our shared natural environment,” said Gove recently. “We need to take the opportunity that being outside the CAP will give us to use public money to reward environmentally-responsible land use,” he added.

So according to Gove, there will be money available, but it’s farming that has to change its practices and methods if it wants to get that financing. And for once, farmers seem to be in agreement with the Environment Minister (which in itself must be a first).

However, they are still concerned that the fundamental point of farming – the production of good quality and affordable food – is being overlooked in favour of more headline-grabbing environmental measures. British agriculture will need to ensure greater levels of food productivity in the coming years, and they may have to do that on tighter budgets than before, despite promises by the government to match the CAP pay-outs.

It’s also worth remembering that EU law also covers a whole slew of other environmental issues, such as water quality, the use of pesticides (the recent ban on neonicotinoids to protect bees is a case in point), air pollution, and the forthcoming battle over fracking. Campaigners are now concerned that without the backing of the EU, and with potential changes being made to environmental legislation under the Great Reform Act, the UK may not be such a green and pleasant land post-Brexit.

Food processors – the biggest losers?

Changes could also affect the food processing industry in the UK, where 60% of exports currently go to the EU. Depending on the outcome of negotiations, this industry could be hit hard by tariff increases, with rises of 48% for processed dairy products, 22% for livestock and 18% for cereals being talked about. That could effectively make exporting food to the EU unprofitable for many processors, and the knock-on effect to farming could be massive.

While farming will continue to be a hugely important part of UK life, there is no question that it will change after Brexit. The question remains just how those changes will take effect, and whether they will be for the better. That really depends on how farming responds, and whether the government keeps the financial promises it has made to the industry.

Employment Tribunal Fees

Good practice vital for employers in managing tribunal claims

In July, the Supreme Court ruled that employment tribunal claim fees were unlawful, and now it’s been confirmed that an ex-employee has been granted an extension of time to pursue their out-of-date unfair dismissal claim, on the basis that the original action was dropped due to the fees.

In giving the go-ahead for an extension in the case of Dhami v Tesco Stores Ltd, the claimant could show they had lodged the original claim within the three-month time limit and the fees were an important reason for not proceeding. It is likely that many more out-of-date claims will be put forward, and, as a result, employers may find themselves firefighting situations that were considered closed.

The Supreme Court ruling in July in R (on the application of UNISON) v Lord Chancellor put an end to the requirement for a fee to be paid on submitting a claim, known as the issue fee, and another a few weeks before the hearing. Introduced in 2013, the cost was more than £1,000 for complex claims, and the number of tribunal claims dropped by two-thirds as a result.

The public service union UNISON brought the case, arguing that the fees undermined the fundamental principle of access to justice for all, and that it was discriminatory as women generally earn less and so were likely to find it harder to pay. The Supreme Court agreed, saying it was unlawful under both domestic and EU law, and the fees were abolished with immediate effect, and payments made under the scheme are to be refunded.

Commentators and employer groups were quick to predict a steep increase in claims back to previous levels, arguing that with no financial risk involved, employees will be more likely to make a claim, whether legitimate or bogus.

Said Amy Cusworth law expert Oxley & Solicitors LLP of Rotherham town solicitors : “For now, employers who focus on best practice and knowing their responsibilities will be better placed to manage any such claims. This is the time to identify any potential claims that may be made, and having reviewed the circumstances take steps to avoid such things recurring. Demonstrating a positive attitude to any Employment Tribunal will stand a business in good stead.”

She added: “It’s more important than ever to have a positive working environment, as well as complying with the many laws applying in the workplace. It’s good for business, as well as minimising the risk of claims.

“If you do find yourself facing a claim, then think about maximising mediation efforts, and using ACAS Early Conciliation as an opportunity to resolve things swiftly. Equally, if having investigated the claim and having tried to resolve the matter by conciliation, you believe that the employee is just trying it on because they have nothing to lose, it may be worth being bullish and going for costs, a deposit order or applying to strike out proceedings.”

R (on the application of UNISON) v Lord Chancellor

Dhami v Tesco Stores Lt

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

SFE & Digital LPA’s

Local solicitor warns changes to powers of attorney may leave older and vulnerable at risk

• Local solicitor, Jayne Jackson from Oxley & Coward Solicitors LLP issues warning following FCA’s call to turn lasting powers of attorney (LPAs) fully digital

• Proposals would remove the need for a physical ‘wet signature’

• Solicitors say this could lead to a drastic increase in cases of financial abuse

Local solicitor Jayne from Oxley & Coward based in Rotherham has joined fellow members of Solicitors for the Elderly in warning against proposals to turn the LPA registration process fully digital.

An LPA is a powerful legal document that allows a person to appoint trusted individuals to make important decisions about their finances and property on their behalf. Under the current process, a ‘wet signature’ – the physical signing of the document – is required by individuals who wish to register an LPA. But in a paper released on Thursday, the Financial Conduct Authority (FCA) called for a fully digital system, whereby documents could be registered completely online.

Jayne said: “We are extremely concerned by the FCA’s push for fully digital powers of attorney. Although we welcome initiatives that make LPAs more accessible, the security of older and vulnerable people is paramount. Under the current system, the FCA’s vision of a secure, end-to-end digital LPA registration process is simply not possible.

“Removing the requirement of a wet signature has the potential to put thousands of people at risk of fraud and financial abuse. An LPA requires the understanding and consent of the donor, but without the witnessing of a physical signature, what is to stop a family member or friend registering a document on someone else’s behalf, perhaps even without their knowledge?

“LPAs are extremely powerful and complex documents, and the prospect of being able to take control of someone else’s bank account and even their property with the few clicks of a button is frankly reckless.”

Solicitors for the Elderly is an independent, national organisation of over 1,500 lawyers, such as solicitors, barristers, and chartered legal executives, who provide specialist legal advice for older and vulnerable people and their families. Last year, the organisation released a report raising concerns around the current online system for LPAs, which it claims already leaves older and vulnerable people open to abuse.

LPAs are processed by the Office of the Public Guardian (OPG), a public body under the Ministry of Justice. The OPG has previously considered changing the LPA application process as part of a gradual move to take all its processes online.

To find out more about SFE, and to speak to a lawyer near you, go to: http://www.sfe.legal

Student Accommodation Guidance

Giving rookie renters a helping hand

Following the recent A level results, many first-time students will be looking for last-minute accommodation, if they aren’t heading to their first choice of university with an assured place in the halls of residence.

Parents can help guide the rookie tenants through the process, but may themselves not be aware of how things have changed since their uni days or first-time flat rental.

All too often both parents and students get focused on the emotional upheaval or logistics, rather than the important details of checking out the property and making sure the landlord is a safe bet.

Privately-owned student accommodation is likely to be an HMO – or house of multiple occupation – if it accommodates three or more students, which places extra obligations on the landlord. For example, an HMO will need to satisfy special requirements regarding fire and general safety, utility supplies and management of communal areas, which could include fire alarms, extinguishers and fire blankets on every floor. You can also ask to see landlord’s HMO licence. If a landlord doesn’t have a licence when they should, they can be prosecuted and you may be able to reclaim up to 12 months’ worth of rent paid during the time that the HMO was unlicensed.

Whether the property is classed as an HMO or not, all landlords should ensure that gas appliances are covered by an annual check, that all electrical installations are checked every five years by a qualified electrician and that any appliances like washing machines, kettles or toasters have a PAT certificate.

In privately-owned student accommodation, any agreement is likely to be based on an assured short hold tenancy. This can be for a fixed term such as the academic year, for 12 months, or periodic, which may run from month-to-month. Most lets include the summer holiday period these days, with either full or reduced rent due.

A written agreement should be provided by the landlord, and as a minimum this should be a statement of the main terms, including the date it will begin, the rent due, when and how it must be paid, if the rent can be changed and how long the agreement is for. Under some agreements the tenants may be jointly and severally liable for the rent. This means that, if one of the tenants does not pay their share, the landlord can sue any of the other tenants for the unpaid rent and may pursue the easiest option. For example, in a house share with a mix of home and overseas students, the landlord may choose to pursue one UK resident for the whole sum, rather than any of the overseas students. Also, it’s likely that every student will have to be backed up by a guarantor such as a parent.

By law, any deposit must be held by the landlord in a registered deposit protection scheme and you should ask to see evidence of this being done within 30 days. The deposits may be held in the name of one or more designated tenants.

The property should be checked carefully against the inventory, and whether this is a comprehensive record of all contents and the general condition of each aspect of the accommodation or a simple list, it’s worth taking photographs of the condition of everything, including any damage or poor condition that you pick up as you go round the property, to ensure that you have a strong case for the full return of your deposit at the end of the tenancy.

Recently, a group of student tenants in Bristol took a letting agent to court and managed to overturn a deduction of £780 worth of charges which was being taken from their deposit to cover redecoration and cleaning. The students had photographic proof of the state of the accommodation when they took it on and could show it was cleaner when they left, as well as having evidence to demonstrate that works claimed for by the letting agent had not subsequently been done. Their attention to detail helped them secure a County Court judgement, and the return of the deposit.

Explained property legal expert Amy Cusworth of Oxley & Coward LLP Solicitors Firm in Rotherham: “Thanks to the huge rise in demand for university places over recent years, many different types of investors and private landlords have entered the student accommodation sector. There’s been a big shift away from the scruffy digs that people used to experience at university, but there are still many older properties that may be more likely to pose problems in terms of repairs and general condition, and no sector is immune from difficult landlords.

“The important thing is to make sure young people have some guidance, and if necessary get the contract and terms checked out professionally. It’s likely to be the parent who is on the line as guarantor, so it’s worth taking time to be sure, and not just jumping to secure a last-minute property.”

Some tips from Name include:

If you’re using a letting agent be sure of their procedures and where a holding or advance rental deposit is required, find out if it will be refunded if the application fails to complete, for example if you don’t pass a credit check
Ask to see the relevant licences, such as for a House in Multiple Occupation, and for any gas or electrical installations and appliances
If the letting agent or landlord says that any work will be undertaken as a condition of you taking on the tenancy, get it in writing before signing any agreement
Read the small print on the tenancy agreement and if anything doesn’t sound right then get it checked out, as once you’ve signed, you’re committed
Check the inventory – dispute anything that’s not accurate and take photographs when you move in
Make sure the deposit is being held in a Government-backed scheme.

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Wills & Probate – Dementia & Power of Attorney

Wills and Probate Dementia and the power of attorney

One of the fastest growing health issues in UK society is the seemingly relentless rise in dementia. This terrifying category of diseases combined with an older population means that it’s never been more important to get your affairs in order as early as possible. But if dementia does take hold, at what point do you hand over responsibility to a nominated person and grant them Power of Attorney over your financial affairs? And what alternatives do you have?

LPAs – there to look after your affairs

Wills are, without doubt, an essential part of the process of later life. It’s not something that people want to think about at any age, but unless you want to leave a financial tangle behind for your bereaved relatives to sort out after you’re gone, it’s crucial to make sure your will is taken care of earlier rather than later. A key part of that could be creating an LPA.

An LPA (or Lasting Power of Attorney) is a document that allows you to appoint one or more people to look after your affairs and make decisions on your behalf when you are no longer able to. These nominees are referred to as attorneys, although they do not necessarily have to have legal experience to qualify, and are usually close relatives or trusted friends. There are two types of LPA:

A Health and Welfare LPA can specify what kind of treatment and palliative care you want if you have a degenerative disease like dementia, whether you should be moved into a care home, and specifics concerning your daily routine.
A Property and Financial Affairs LPA often gives your attorney access to your finances to manage your affairs when you are unable to. They will be able to access your bank accounts, pay bills, and arrange the sale of your property if you go into a care home.

LPAs must be registered with the Office of the Public Guardian, which can take up to ten weeks to complete.

LPAs are appointed by a person while they are still capable of making rational decisions concerning their future care, financial matters, and how their estate is to be managed once they are no longer capable of doing it for themselves. There has to be a degree of trust between the sufferer and the person appointed to take responsibility for the instructions laid out in the LPA, whether that’s a Financial or a Health and Welfare agreement.

Court of Protection appointed deputy

There is an alternative to an LPA in the form of a Court of Protection appointed deputy. These are usually appointed by a third party on behalf of a dementia sufferer once they have lost the ability to appoint their own representative.

However, this is rarely offered as an option to an LPA, primarily because in the majority of cases an LPA has been arranged long before a dementia sufferer loses the ability to make considered decisions about their future care. As long as the person nominated to look after the stipulations laid out in the LPA has the trust of the donor, and the donor is mentally capable of making the decision to nominate a person as their LPA executor, there shouldn’t be any problems.

A court-appointed deputy is only really appropriate after a dementia sufferer has lost the ability to make rational decisions for themselves, or there is no one to act as an LPA nominee. They have to provide a full list of assets and annual accounts, as well as a security bond.

Sorting things out sooner rather than later

As power of attorney is often agreed upon before the condition really starts to affect the cognitive ability of the sufferer, it can be months or even years later when the power of attorney status really comes into play. By then, the family dynamic may have dramatically altered, as may the financial situation of the sufferer, especially if they have been forced to go into a care home.

This is why it is so important to sort out not only your will, but any LPAs as early as possible, especially after the diagnosis of a degenerative disease. LPAs can, in fact, bring families closer together, as they ensure the sufferer is cared for properly, and that those granted the Power of Attorney are fully aware of their responsibilities from the outset.

Gender Pay Gap Reporting

Gender pay likely to stay in the spotlight

The BBC found itself in a media storm last month, following the publication of salaries paid to its highest-earning stars, which revealed that only one-third of its 96 top earners were women, and the top seven were all men. Since then, staff at the Financial Times have threatened to strike over the paper’s reported 13 per cent gender pay gap.

It’s an issue that is likely to keep on drawing attention, now that larger employers are obliged to publish their gender pay gap information. The Equality Act 2010 (Gender Pay Gap Information) Regulations came into force on 6 April and some organisations are already publishing their results.

The Regulations apply to all private, public and voluntary sector organisations with 250 or more employees, who must publish details annually of their gender pay gap, for both basic pay and any bonus payments, with first reporting due no later than 4 April 2018. The information must be published electronically on their own website and on a dedicated government space.

Although this will provide greater transparency, it will not provide the sort of detail published by the BBC, which was required to publish the names and salaries of its high earners under its new Royal Charter, to demonstrate its stewardship of public money.

However, implementing the new Regulations is likely to be resource-hungry, with internal systems needing to be configured to generate the figures, and organisations may find themselves wanting to provide a more detailed analysis if they feel the headline information does not give the full picture – for example by breaking down the overall pay gap figure by part-time working or geographical location.

Said Amy Cusworth law expert of Oxley & Coward Solicitors LLP: “There’s a legal requirement for organisations to publish this information, but it’s their corporate reputation that is likely to take a hit if their pay gap proves to be on the wrong side of the national average of 18.1 per cent¹ . It’s worth getting the information together now, rather than waiting for the deadline, as that will allow time to review the current position, look at underlying causes and put steps in place to address any issues. Future strategy can be addressed in the written statement that must accompany the statistics.”

Figures must be calculated using the ‘snapshot date’ which is 31 March for public sector organisations and 5 April for businesses and charities, and the data published within a year of the snapshot date, meaning the deadline for companies to publish the first year’s data is 5 April 2018.

She added: “If a significant pay gap is revealed by a company, the other concern is that they could find female employees challenging why their pay is different from that of male colleagues. If the difference cannot be justified, there could be grounds to claim gender-based discrimination.”

The data to be published is:

mean gender pay gap in hourly pay
median gender pay gap in hourly pay
mean bonus gender pay gap
median bonus gender pay gap
proportion of males and females receiving a bonus payment
proportion of males and females in each pay quartile

The accuracy of the data must be confirmed in a written statement signed by an ‘appropriate person’ in a senior position, such as a director or partner.

¹Per Government Equalities Office

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Bringing Will Writing into the 21st Century

Where there’s a will, there’s a way

When thinking of making a will, the idea of a Victorian lawyer taking down the last instructions at the bedside still springs to mind for many people.

And the 19th century lawyer would find things pretty much as they were if they time travelled to 2017, but a major change to how people can say what should happen after their death is likely to happen soon. If the proposals from the Law Commission get the go ahead, the law is likely to catch up with technology, and in future we could see emails and other simple expressions of intention being acceptable.

But in the meantime, the only way to be sure of what happens after you die is to make your will following the formalities that have been in place for hundreds of years. That is particularly important for those who may be living with partners, for whom the current law offers no protection, or where there are young children, for whom the choice of guardians may be important. Yet it’s estimated that around 40% of the adult population don’t have a will.

To be valid, a will must be in writing and be signed by the person making the will in the presence of two or more witnesses, who must also sign at the same time.

Without a valid will, the division of assets is decided by the Intestacy Rules under which, typically, the whole of the state of someone who dies leaving no surviving spouse or civil partner will go to children, or if they have none, to parents or other family members. If there is a surviving cohabitee they could apply for “reasonable financial provision” under the Inheritance (Provision for Family and Dependants) Act 1975, but this is a very slow and potentially expensive option, and in the meantime, they may be blocked from living in the couple’s home if it was not held in shared ownership.

The main proposal from the Law Commission would see the Courts able to recognise wills that have not followed the existing strict rules, so long as the deceased’s testamentary intentions are clear. That will include provisions to recognise electronic wills, if fraud and undue influence can be ruled out. It is also intended that new rules would take better account of conditions such as dementia, which affect decision-making.

Said Jayne Jackson trust and estate law specialist with Rotherham-based Solicitors Oxley & Coward LLP: “If these proposals go ahead, it will bring the law relating to will writing into the modern world, which is good news as long as there is sufficient protection, particularly for the elderly and vulnerable. But nothing is going to change right away, and even if the rules do change there is likely to be a period of uncertainty during which any ambiguities in the new rules are tested in the courts, so for the time being it’s important that wills comply with the long-standing rules. Not having a valid will in place can create a lot of stress for surviving family, at what is already a very difficult time.” She added: “Making a will is something that people often put off, perhaps because they find it hard to think about it, but it’s the only way you can be sure of what happens when you die, and there are issues that will be important at different life stages. If you have children under 18, it’s likely you would want to have named guardians to care for them, or to make special provision if a child of any age has limiting physical or mental health issues. Older people may want to make plans to mitigate inheritance tax, and cohabiting couples may want to ensure property or assets pass to each other, as they do not have the protection that comes with marriage or civil partnership.”

The consultation period will run until 10 November 2017.

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

How to speed up the conveyance process. Getting that SOLD! sign up faster in a soft market

Describing the current housing market as ‘soft’ is a polite way to say it’s tough out there. Belts are tightening, mortgage lenders are asking a lot more questions and delving deeper into your financial history before saying yes to a loan, and bricks and mortar simply aren’t moving as quickly as before. House prices are still growing (mostly), but at a considerably reduced rate compared to 2016PB (Pre-Brexit).

You can make your property as attractive as possible to buyers by making sure you have great photographs, utilise online sellers as well as traditional agents, and even brew up some fresh coffee or bake some cakes to make it smell ‘homely’ when viewers come around.
However, if there’s one thing that really puts the brakes on a house sale, it’s the paperwork. So how can you speed up the conveyancing process and get that SOLD! sign up, even in a soft market?

Know the pinch points
There are several pinch points that can slow up your house purchase or sale, including:
• The conveyancing process
• A chain
• Surveys
• Leasehold agreements
• Finances

While each of these can act as a roadblock to a successful sale or purchase, the top pinch point has to be conveyancing. Let’s take a more detailed look at why this can be such a problem to vendors.

What is Conveyancing?
Conveyancing gathers together all of the information you need to make a transaction. That can include information on planning permission, the title deeds, probate, and gathering information from local authorities, who are not usually known for their laser-fast processing skills. You also have to bear in mind that your conveyancer is not just working on your property sale/purchase, but a dozen others, too.
Just like a jigsaw, to successfully sell or buy a house you need to have all the pieces in place. That means ensuring you’ve got the finances locked in (through a mortgage or loan), you’ve chosen all the criteria for your ideal property, and that you’ve already got your conveyancer in place before you start.

The big slow-down
The pre-exchange period, the point at which the contracts are reviewed, really slows things down to a crawl. This is when your conveyancing expert is waiting for other people to supply them with information, whether it’s mortgage agreements, a draft contract, search results, or copies of other documents such as planning permissions. Even in this digital age, ‘radio silence’ can happen and it’s very disconcerting for the client to wait for days or even weeks without a peep from the conveyancer. If you want to avoid that nerve-wracking wait then ask to be blind copied on all outgoing emails so you stay updated, as well as letting you spot any potential problems earlier.

How to get things moving
• Cut down the delay time by finding a conveyancer as soon as you start looking for properties (as in seriously looking, not just ‘weekend browsing’ expeditions). Look for an experienced conveyancer, who holds the right quality marks such as LawNet Quality Standard ISO 9001:2015
• Get everything in place such as finances, certified identification, and make sure you have a someone on your ‘Phone a Friend’ line who can witness signatures at short notice.
• Look for properties without a chain. This can shave months off the completion time, and make things much easier for your conveyancer, as they’re not left hanging while the next property in the chain finalises their mortgage arrangement or completes a survey.
• Get organised! Make sure all your ducks are in a row, that you’ve got all the paperwork in place, and that you stay on top of the process from day one. Work with your conveyancer to speed the process up. Have all those important documents to hand so if they’re needed you don’t have to go searching for them.

2018 EPC Regulations: Notes for Landlords

We all want to be greener, more energy efficient, and have warm, comfortable homes that don’t leak heat or let in the cold. If you’re a landlord, though, you now have a responsibility to ensure your rental properties are energy efficient. After much to-ing and fro-ing, the 2018 EPC regulation amends have finally landed, with the changes finalised by the Dept. for Energy & Climate Change. In a nutshell, it means it will be unlawful to let or lease a property (both residential and commercial) that has a poor EPC rating.

When is all this happening?
The regulations change on April 1st 2018. Don’t be fooled, this is no joking matter, as non-compliance could cost you a big fine. The EPC ratings in the changes are aimed at the private rental market, and covers both domestic properties (from one-room studio flats to detached houses) and commercial property including factories and offices.
The changes will be based on the CO2 emissions for commercial property, and on fuel costs for domestic dwellings.

What properties are covered?
The regulations apply to non-domestic properties defined as commercial use property types A1-D2 usage. The only exceptions are those which are currently exempt from existing Energy Performance Certificate regulations.
Domestic property defined in Section 42 of the Energy Act 2011 as ‘properties let under an assured tenancy for the purposes of the Housing Act 1998’, or a regulated tenancy under the Rent Act 1977. In short, almost any domestic property regardless of size, and the vast majority of commercial premises fall under the new regulations.

What it means for landlords
Landlords will only be able to let properties that qualify for a Band E rating under EPC regulations. With an estimated 18% of commercial property falling short of that (and tipping over into the band F or even G ratings), there could be a mad rush to make sure properties comply before April 1st next year. The upgrade costs to make sure properties comply with the regulations could run into the millions. And there’s a very good chance that it will force landlords to trickle down the costs in higher rents not just for those who have to undergo upgrades, but for everyone.
There’s no point trying to offload a property with an F or G rating either, as the new regulations could severely impact on market value. So, with the wind taken out of the resale value, and potentially expensive repairs in order, it could be a tough period ahead for landlords.

Exempt properties
There are some properties that will be exempt from the new regulations, where landlords could potentially let a property with an EPC rating below the required standard. But even if a building does qualify for an exemption, it will only be granted for a period of five years. So it’s really a matter of delaying the inevitable, rather than avoiding it altogether.

Compliance and enforcement
The bottom line for landlords is that they will have to make improvements to a building that deliver energy saving effects that can basically pay for themselves within seven years. From lagging pipes to insulating lofts, a lot will depend on the age and condition of the property.
Enforcement falls to local Trading Standards Officers and while the penalties haven’t yet been finalised, non-compliance fines will depend on the rentable value of the property. That could mean fines of anything between £5,000 and £150,000. Providing false or misleading information could result in a further £5,000 fine.

Making sure you comply
If you’re a landlord and are worried about the upcoming changes, the first step is to talk to property experts who can look at your situation in detail. Even if a property doesn’t meet the required standards, it doesn’t necessarily mean you’re staring at a huge repair bill for energy efficiency upgrades. It needs an expert overview to make sure you are complying with the regulations, but with less than a year on the clock, it’s better to act sooner, rather than later.

National Minimum Wage

Good intentions not enough in wage calculations

Accurate calculations of the National Minimum Wage continue to cause headaches for employers, with an employment tribunal acknowledging the complexity, saying there is no single key to unlock every case.

Recently, unintentional underpayments in staff pay packets have affected major retailers like John Lewis and Tesco, while others have been waiting for an employment tribunal decision on when sleeping night shift staff are eligible for the National Minimum Wage (NMW).

For John Lewis, a staff-friendly policy of aggregated wages to provide regular monthly income has resulted in the company having to provision £36m for underpayments over a six-year period, despite most under-payments being technical, rather than actual. Staff wages were smoothed out over the year so they received the same amount each month, rather than being paid for the exact hours worked. The problem arose when individuals worked extra hours in a month and the aggregate monthly payment was less than the payment due for the hours worked under the NMW Regulations.

Argos and Tesco have made similar payroll mistakes. Tesco is having to compensate 14,000 staff at a cost of £10m for employees who had made salary contributions to pensions, childcare and other schemes which resulted in their pay falling below the National Living Wage level. Tesco has blamed its payroll software for the error, but for many employers the difficulty lies in correctly interpreting the NMW Regulations.

One such thorny area is payment for employees who sleep overnight in the workplace or are on call. Previously, such workers were often paid a flat rate for when they were sleeping and their normal hourly rate when they were required to attend to their duties. This approach was challenged on the basis that it did not comply with the NMW Regulations, and three such cases were recently heard together by the Employment Appeal Tribunal: Focus Care Agency Ltd v Roberts, Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake.

But for employers hoping for certainty on the issue there has been frustration, with the Tribunal saying that there is no ‘bright line’ and that businesses must conduct a ‘multifactorial evaluation’. Their findings highlighted four key factors.

The reason for engaging the worker – if an employee is on site to comply with a regulatory or contractual obligation, then the individual is more likely to be classed as working throughout their whole shift, even if they are asleep or with nothing to do.
Restrictions on the worker’s activities – if a worker would be disciplined for failing to remain on stand-by, for example by leaving the premises, then the NMW is more likely to apply than in situations where someone is able to come and go as they please.
The degree of responsibility – if a worker is required to keep a listening ear and respond, such as a care worker, they are more likely to be treated as ‘working’ than someone who is at home on-call.
The immediacy of the requirement to provide services – this includes both the speed and the level of responsibility of a worker. If they are the one who will decide whether to intervene and then take the action, they are more likely to be categorised as working than someone who is woken and instructed by the responsible member of staff.

“The Tribunal’s decision highlights just how tricky this area of the law can be, but compliance is a serious business,” said employment law expert Amy Cusworth of Oxley & Coward Solicitors LLP. “It’s sometimes difficult to understand what’s right and what’s wrong, and borderline cases will be difficult to decide, but if there’s any doubt it pays to investigate further as getting it wrong may mean a company faces claims for back-pay, which can go back six years. As well as the financial costs, there may be enforcement action by HMRC, and reputational damage.”

The National Living Wage is a premium tier of the National Minimum Wage for eligible workers aged over 25. For those eligible workers aged under 25, there are further categories of age-related rates.

Year	25 and over	21 to 24	18 to 20	Under 18	Apprentice
April 2017	£7.50	£7.05	£5.60	£4.05	£3.50

Although given as hourly rates, the NMW Regulations apply to any eligible worker, whether or not they are paid by the hour and calculations must be made according to the payment basis. For example, someone paid annually or by piece-work can use a formula to work out the equivalent hourly rate and check if they’re being paid the right amount.

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues

Mental Health in the workplace

Workforce wellbeing must include mental health awareness

Understanding of mental health issues is high on the agenda, thanks to the involvement of the younger members of the Royal family in the Heads Together awareness campaign which has seen the #oktosay hashtag trending.

Their activity gave an extra boost to this month’s Mental Health Awareness Week, but now the annual campaign is over, employers have an important role to play in making sure the message isn’t forgotten. By having strategies that focus on mental health as part of employee wellbeing, businesses can help drive individual support, as well as improving the bottom line. They may also avoid potential complaints or even litigation from staff.

Estimates by ACAS suggest that around £30bn is lost each year through lost production, recruitment and absence arising through mental health issues and it’s estimated^[1] that employers should be able to cut these costs by around a third, if they implement better management practices to support ‘mental-healthiness’ in the workplace.

Recent research[2] by the Mental Health Foundation, the charity behind Mental Health Awareness Week, found that nearly two-thirds of people in Britain have experienced a mental health problem. The figure is higher for women than for men, and for young adults between 18 and 34 and people living alone. It’s a big issue, but often isn’t discussed and campaigners are keen to get everyone talking more, to understand that mental health problems can have a serious impact on an individual, even though they may not be visible in the same way as a physical condition. A recent workplace study[3] found that those suffering from mental health issues were 37% more likely to get into conflict with colleagues, 80% found it difficult to concentrate and 50% are potentially less patient with customers/clients.

“It’s the cloak of invisibility that may mean things are ignored or potentially mishandled,” explained employment law expert Amy Cusworth of Oxley & Coward Solicitors LLP. “There’s often an unwillingness to raise the issue, as people find it hard to talk about mental health. They may feel there is a stigma, or that it could have an impact on their longer-term prospects, if they feel they may be judged as not strong enough. Employers can help by putting support structures in place, with an open attitude to communication, which can drive better understanding as well as helping to address their legal obligations.”

In some cases, mental health issues may be classed as a disability under the Equality Act 2010, which makes it unlawful for an employer to treat a disabled person less favourably because of their disability, without a justifiable reason. Mental health issues may be considered a disability if they have ‘a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.’

She added: “Where someone suffers from severe depression, for example, that’s not enough on its own to meet the definition of ‘disability’ under the Equality Act; the situation would need to meet the requirement of having a substantial, long-term impact on the individual’s abilities. But, whatever the extent of an individual’s mental health issues, all are equally in need of responsible support and protection from unfair or discriminatory treatment. There is a responsibility on the employer to tackle mental, as well as physical health in the workplace and hard-wire it into all aspects of their recruitment and employment policies.”

Tips for employers include:

Have a policy that specifically addresses mental health issues and encourages everyone to feel able to talk about the subject, with a clear route to raise any problems. This should be well published across the business, as well as being included in the staff handbook.
Encourage everyone to understand the issue, through disability and equality training, and equip line managers to identify potential mental health issues.
Establish support networks for employees to access, whether HR-led internal support, or through external employee assistance programmes providing access to counselling, medical insurance or occupational health.

She added: “Whether recruiting, or with an existing employee, it’s important to focus on the ability of an individual to do the job and, if they have any physical or mental impairments, to consider whether reasonable adjustments could be made to enable them to fulfil the role.”

Useful links : Acas : the NHS’s Mindful Employer initiative : Mental Health Foundation

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

[1] Centre for Mental Health

[2] Mental Health Foundation : research March 2017

[3] Chartered Institute of Personnel and Development

Property owners and their responsibilities

House sellers are facing testing questions

Springtime is traditionally the busiest time for the property market, but with a knotty problem affecting more homes than ever, it’s worth doing some horticultural homework before you start, whether you’re buying or selling.

Japanese knotweed is a highly invasive, aggressive and destructive plant, able to grow as high as four metres in just a few months and with roots that can spread seven metres. It’s non-native with no natural predators, and is able to cause significant structural damage, growing through asphalt and other hard surfaces, often compromising building structures. Getting rid of it is a costly and time-consuming business, involving specialist waste disposal, because simply digging up the roots is not enough to kill it.

You can be fined up to £5,000 or sent to prison for two years if you allow contaminated soil or plant material from Japanese knotweed to spread into the wild, and now a landmark court ruling has found that a landowner is responsible if they do not prevent the plant from spreading from their land to adjoining properties.

The case involved a group of homeowners in South Wales, who took action against Network Rail after Japanese knotweed grew into their garden from adjoining railway sidings. The knotweed had been there for at least 50 years and had been actively treated since 2008, to ensure visibility for trains on the line. In weighing up the claims of the homeowners, the judgement considered the extent of nuisance suffered, and found in their favour, saying that the presence of Japanese knotweed was enough, without any physical damage, as it had the potential to seriously affect the market value of a property.

Many mortgage lenders restrict their lending on properties that are affected and homeowners may have difficulty in selling, or find the value of property reduced by as much as 50%.

There have been few previous rulings involving Japanese knotweed infestations, and the outcome is likely to put extra pressure on property owners to control the plant, and have a significant impact on larger land owners and those responsible for tracts of public land.

Conveyancing expert Miss Dawn Cherry of Oxley & Coward Solicitors LLP commented: “If you’re not a skilled gardener, it’s worth getting to grips with the Japanese knotweed identification sheet. If you can see it growing on your property, then take steps to eradicate it. If it’s growing on neighbouring properties, speak with your neighbours, and if they don’t tackle the problem then it’s worth considering action.

“If you are successful with a nuisance claim, you can push for neighbours to undertake a five-year eradication programme and ask for a guarantee from the specialist company involved, as well as seeking compensation, if there is evidence it has travelled through your boundaries.”

She added: “Taking action to protect what is probably your biggest asset is a simple but sensible option, whether you’re buying, selling or staying put. These days, when you sell a property, you will be asked whether Japanese knotweed has been found on the property and the reply will be included in the comprehensive pack of buyer’s information that lawyers compile during the conveyancing process.”

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Late payment and the new duty on large companies to report on payment practices

Small suppliers set to get intel on big company payment performance

New regulations designed to help small businesses get paid on time came into force this month, with a requirement for larger companies to publish information about how long they take to pay suppliers.

The requirement affects companies and LLPs who exceed two or more of the qualifying thresholds at the date of their last two balance sheets. The thresholds are based on the definition of ‘medium-sized’ under the Companies Act 2006 and are an annual turnover of £36 million, a balance sheet total of £18 million and an average of 250 employees during the year.

From 6 April 2017, those qualifying will be required to publish information on a Government website about their payment practices and policies and how they have performed against them, including the average time taken to pay suppliers, and to update the information every six months.

Late payment is recognised as causing serious financial and administrative problems for businesses and the aim of the new regulations is to tackle concerns about adverse treatment of smaller suppliers by larger, more powerful customers, through increased transparency and scrutiny. The Reporting on Payment Practices and Performance Regulations 2017 came about as part of the Small Business Enterprise and Employment Act 2015, and applies to public, private and listed companies and to limited liability partnerships through a separate set of regulations.

Businesses will not be required to report in their first financial year and those in their second year will be expected to check the requirements against their single, first financial year. For parent companies and LLPs, reporting will be required if the aggregate group figures exceed the thresholds. Any company or LLP within a group that satisfies the test individually, will need to report separately on its own payment practices and performance.

Explained commercial/contract law expert Mr Simon Turton of Oxley & Coward Solicitors LLP: “It’s important that larger businesses check whether they are required to report under the regulations, and must then keep an eye on the thresholds as these will be updated over time. Smaller businesses can ask new customers whether they are required to report and, if they are, check out payment performance as part of their pre-contract checks”.

He added: “It’s worth remembering that there are other existing measures already available to tackle late payment, including the option of claiming interest and recovery charges, and it’s worth checking that existing contract terms don’t undermine those rights with something less advantageous.”

Under the Late Payment of Commercial Debts (Interest) Act 1998 commercial businesses are expected to pay their supplier invoices within 30 days, unless they have both agreed a longer time limit of no more than 60 days. Alongside, all public bodies are required to pay suppliers within 30 days, except for some specific or devolved activities.

Statutory interest can be applied, together with a fixed sum of between £40 and £100, depending on the sum owed, for the cost of recovering the late commercial payment. The interest is currently set at 8% plus the Bank of England base rate, and starts to run automatically at 30 days from the latest date of either receiving the supplier’s invoice, or of receiving or accepting the goods or services. You can agree a longer period for payment, but if it’s more than 60 days it must be fair to both businesses. And unless a ‘reasonable’ longer period has been agreed, any purchaser must confirm that goods or services conform with the contract within 30 days.

Late payment legislation does not have to be referenced in trading terms, as it will apply automatically in any commercial relationship, unless an alternative process has been set out in the contract.

This information is not intended as legal advice

Business must be aware of its responsibilities in operating social media fee

When tweets become twibels….

Facing up to the social media challenge for business

Every business using social media should get to grips with publishing law and advertising regulations if they are to avoid reputation-damaging incidents.

The reminder follows the news that opinion columnist Katie Hopkins has been refused leave to appeal against a recent High Court libel verdict, where she was found to have published defamatory tweets, or what’s been coined ‘twibel’.

Anyone using social media is a publisher, putting information out into the public domain, but unlike newspapers and book publishers, most businesses don’t have a good understanding of publishing law and how to avoid breaching it. Similarly, many businesses are not considering how their social media posts may breach advertising regulations, as the boundaries between paid-for advertising and other forms of communication become more blurred.

It’s the sort of confusion that led to a complaint being made that a tweet sent from the account of England football captain Wayne Rooney, as part of his sponsorship by Nike (UK), was not clearly marked as a marketing communication. The tweet read: “The pitches change. The killer instinct doesn’t. Own the turf, anywhere. @NikeFootball #myground pic.twitter.com/22jrPwdgC1”. Although in that case the Advertising Standards Authority found that Nike (UK) had not breached the code of conduct, saying the tweet was obviously identifiable as a Nike marketing communication, it may not always be clear to businesses where the line is drawn.

For Katie Hopkins, the tweets she posted that were found to be defamatory implied that prominent poverty campaigner and writer Jack Monroe had defaced a war memorial, in a case of mistaken identity. Monroe offered her the chance to publicly apologise or face legal action, but Hopkins refused. When the case reached the High Court, the tweets were found to have caused ‘serious’ harm to Monroe’s reputation. Hopkins must pay damages of £24000 to Monroe, together with Monroe’s legal costs.

In making the judgement, the court had to determine whether the tweets met the requirement for harm that is set out in the Defamation Act 2013 and experts say the ruling is the most important case to date involving libel on social media.

“Controlling social media content is a huge issue for business,” said Commercial/Employment Law expert Amy Cusworth of Oxley & Coward Solicitors LLP. “It’s a fast-moving arena and often posts, tweets, retweets and comments are the subject of instant decision-making. When careful reflection isn’t part of the equation, it’s not surprising that it can lead to problems. It is important that social media policies are kept under constant review and that everyone understands the boundaries they are operating within, through both the company’s marketing strategy and their terms of employment.

“Staff could also learn from the 26-point guide on how to use Twitter, published by the High Court as an appendix to its official ruling in the Hopkins case, which provides a summary of how the platform works. It makes for useful reading, even for those who think themselves experts, as a reminder of who will receive postings when tweeting, re-tweeting or replying.”

She added: “It’s important to have a good crisis management plan in place as well, so that if the worst happens and a mistake is made, then everyone knows what to do if something inappropriate has been posted. Taking swift action with a public retraction is a good start and will demonstrate a willingness to tackle the problem. In the case of Katie Hopkins and her mistaken tweet about Jack Monroe, if she had been quick to correct herself and made a public apology that reached the original audience of her tweets, it’s quite likely the case would not have passed the necessary ‘serious harm’ test for defamation and the case may never have gone to court.”

Private Clients

Families who leave court the losers after inheritance claims

Record numbers of inheritance disputes are going through the courts as modern family structures and rising house prices push more families to contest unfavourable outcomes.

Two recent cases which have seen families losing out after legal action include two brothers who have run up fees of more than their entire inheritance by disputing a stepmothers’ share of their father’s estate, and estranged daughter Heather Ilott who challenged her mother’s will after discovering she had been excluded.

That challenge set her on a ten-year battle which ended this month, when the Supreme Court gave its ruling on Ilott v The Blue Cross and others. Heather Ilott was excluded from her mother’s will following a long estrangement after she left home as a teenager. After her mother’s death, finding that the entire estate had been left to three animal charities, she claimed provision under the Inheritance (Provision for Family and Dependants) Act 1975 (the I(PFD)A 1975), which is designed to protect a surviving spouse or civil partner and dependents who are in need of maintenance but are not left adequate financial provision under the will of a deceased person or under the rules that apply when there is no will.

Heather Ilott’s case rested on her claim that she would be in a position of poverty, reliant upon state benefits. That claim was successful, with the Court of Appeal making an award of £143,000 plus an option on a £20,000 fund. Now, that has been overturned by the Supreme Court, who have reduced it to £50,000. In making their decision, the Law Lords resolved many concerns around the general principle of testamentary freedom which had arisen following the Court of Appeal judgement, and clarified a number of issues under the I(PFD) Act.

Said wills and trusts expert Mrs Jayne Jackson, Partner of Oxley & Coward Solicitors in Rotherham: “The reduction in the award to Heather Ilott by the Supreme Court is a good sign for anyone wishing to make a potentially difficult decision over where they leave their estate, as it reinforces the right of individuals to make their own choices when writing their will. It pushes back against the earlier ruling, a landmark judgement which had caused concern that it might prove harder for parents to disinherit children in future, unless they had very strong grounds for doing so.”

The trend towards increased inheritance disputes has been attributed to a number of factors. Increasing numbers of so-called ‘blended’ families where divorced parents re-marry is one such factor, with original family members not wishing to share with newer members, such as step-parents or step-siblings.

That was the reason behind the recent legal action by two farmer’s sons, who attempted to block their stepmother getting an extra £25,000 in their father’s will. Their action has cost them their entire inheritance of £62,500 each, as Richard and Jonathan Powell have been ordered to pay £200,000 in legal fees, after claiming that their disabled father was unfit to make the final will which left £125,000 to his second wife. The sons had maintained that an earlier will should stand, which would have seen their stepmother receive £100,000.

Another factor behind many inheritance challenges is property values. Where family are excluded, or receive less than expected, a large property price tag is believed to be fuelling many more claims, as more people are inclined to take the costly step of litigation to get the matters before the courts.

To make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, a claim must be made within six months from the date of the grant of probate. For cohabitees, they need to show they were living as husband and wife or as civil partners with their partner throughout the two-year period before they died.

She added: “It all comes down to careful planning and, wherever possible, communicating your decision to family, to try and avoid later rifts. And if you are excluding children, a spouse or civil partner from your will, you should certainly get specialist advice, to be sure that your plans will not cause problems down the line. Doing so also means there is clear evidence of what you intended to do if a will is challenged at a later date.”

Most disputed wills are settled at County Court, but figures released in September last year showed that a record 116 such cases reached the High Court in 2015, eight times the number heard in 2005.

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Budget & Tax Law plus Court Fees

No rabbits, just selfies come out of Hammond’s hat in pre-Brexit budget

The first steps towards preparing the UK for a post-Brexit future were announced by Chancellor Philip Hammond in his Spring Budget, which avoided headline-grabbing shake-ups and tax breaks in favour of economic stability.

In the run-up to the announcement, sterling slipped to a seven-week low, reflecting the uncertainty surrounding the move towards exiting the European Union, but the Chancellor pointed to robust economic growth, record levels of employment and a falling deficit, saying real GDP had grown by 0.7% in the final quarter of 2016 and by 1.8% over the year as a whole.

The biggest headline grabber proved to be the announcement that the main rate of Class 4 National Insurance contributions for the self-employed are to be increased to reduce the gap between the rates paid by the self-employed and PAYE employees. However watch this space. Contributions will increase from 9% to 10% in April 2018 and to 11% in April 2019. Business owners were also targeted, as the Chancellor announced that the dividend allowance would be reduced to £2,000 from next year, so as to reduce the tax differential between those working through a company and the self-employed or employed.

He also confirmed the previously trailed announcement of a crack-down on companies who use subscription-based charging. This will form part of a wider consumer-protection strategy, designed to tackle companies that mislead or mistreat consumers, which will include looking at how to make terms and conditions clearer, simpler and shorter.

Also confirmed was a set of measures to cushion the impact of business rate rises which have caused an outcry from many businesses facing significant increases.

As is increasingly the case, much of the Budget was no surprise, with a number of measures shared in advance of the formal announcement by Mr Hammond, and many of the imminent tax changes having been announced in previous Budget statements. Those include the increased personal allowance, which will rise by £500 to £11,500 for the 2017-18 tax year, and the increased 40% tax band threshold, which will rise to £45,000.

Other major previously scheduled changes are those affecting landlords with buy-to-let mortgages. From next month, landlords who own rental properties in their own names will no longer be able to deduct all mortgage interest and other finance-related costs from their rental income before calculating their tax liability. It’s a system which has benefitted higher rate tax payers and in future tax relief will be limited, in a phased restructuring which will see mortgage interest relief move from 100% to zero over the next four years, as it is replaced by a 20% tax credit.

Said tax law expert Mrs Caroline Carter of Oxley & Coward Solicitors in Rotherham : “This Budget was relatively low profile by comparison with recent years, and there were no shock announcements. Instead, we saw the Chancellor focused on safeguarding the economy as we head towards the uncertainty of Brexit.”

She added: “Not part of the Budget statement, but a significant announcement just released, is the change to court fees payable to obtain a grant of probate after someone dies. Wholesale changes are due to be introduced by the Ministry of Justice in May, which will see fees increase to as much as £20,000, and many are describing it as a stealth tax.

“It’s something else to bear in mind for those engaged in tax planning for the future, although it’s unlikely they can do much to mitigate against the fees, but for executors who are already in the process of administering larger estates, it’s worth reviewing the position to see whether they can take action to apply for probate before May.”

From May, instead of paying a flat fee of £215 for a personal application, or £155 through a solicitor, there will be a tiered set of fees. Estates with a value of less than £50,000 will be exempt. Above that, the fees will be:

Estate value Fee

£50,000-£300,000 £300

£300,001-£500,000 £1,000

£500,001-£1m £4,000

£1,000,001 – £1.6m £8,000

£1,600,001 – £2m £12,000

Over £2m £20,000

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Inheritance tax update for private clients

Taking time to take stock pays off in inheritance tax planning

By tax / inheritance specialist with Mrs Jayne Jackson at Oxley & Coward Solicitors

As the end of the tax year approaches, it’s a good time to make sure you’re maximizing your opportunities for inheritance tax reliefs. This year, as well as taking advantage of exempt lifetime gifts and transfers, property owners should also look at how the new transferable residence nil rate band fits their profile.

The Residential Property Nil Rate Band

Under the new rules, when a person leaves a residential property to direct descendants there will be an additional nil-rate band for inheritance tax purposes – the transferable Residence Nil-Rate Band allowance (RNRB).

To qualify, the property must have been a residence of the taxpayer and be left to direct descendants, so that excludes brothers and sisters, nieces and nephews. It will include natural, adopted, step and foster children, grandchildren and remoter descendants. The spouse or civil partner of a living or dead direct descendant may also be the beneficiary, unless they have remarried.

The RNRB will be available from April 2017, in a phased introduction over the next four years, starting at £100,000 per person. This additional IHT nil-rate band for residential property will be on top of the £325,000 per person nil-rate band, which continues to apply to all assets in your estate, regardless of their nature and without restriction on who inherits the assets.

Like the existing nil-rate band, the RNRB will be transferable to a surviving spouse or civil partner, if unused on the death of the first to die, as long as the first to die owned the property or a share in it. A transferable RNRB will be available even where a spouse has died before April 2017 and in this case, the property does not have to have been held in joint names. By 2020, the RNRB will be £175,000 per person, giving a potential total IHT nil-rate allowance of £500,000 for a single person or £1m for a couple who satisfy the criteria. These RNRB figures are maximum figures: if the value of your house, or your share in a house, is less, then that lesser value will be your RNRB.

The potential savings are significant – by 2020, the estate of a couple could see a saving of £140,000 in inheritance tax where all criteria are satisfied and the maximum RNRB allowance is utilised. So, in tax planning terms it’s high priority and it is worth making sure your estate doesn’t miss out on the allowance if you are a potential match on the criteria.

What may not qualify for the allowance

The additional residential property relief will taper away once an estate is valued at £2m, and estates worth over £2.35m will not benefit, and neither will certain types of trusts. The treatment of trusts has been subject to review since the original announcement of RNRB, as it was not clear initially how they would be treated. Trusts are frequently used to protect assets, for example when children are young or otherwise not fully capable of handling their affairs, or to provide for a new spouse after re-marriage while still making sure assets pass to children of an earlier relationship. It’s now been clarified that the RNRB will be available where beneficiaries of a trust are direct descendants and the trusts provide an absolute right to benefit, or where a disabled person is the main beneficiary, but will not be available for so-called discretionary trusts. As the position is complex, anyone who has any form of trust in their will should make sure that it is still the best arrangement.

People will be allowed to sell a larger house and still retain the relief from inheritance tax, as the Government are keen to encourage older owners to down-size to free up larger properties. Only one downsizing move may be taken into account, so if there are several downsizing moves between 8 July 2015 and the date of death the executors can choose which is to be used for the purpose of the RNRB. Downsizing can include disposing of part of a property, for example part of your garden.

However, to hold on to the relief after downsizing, the proceeds of the downsizing cannot be passed to a direct descendant during a person’s lifetime, as the relief will not apply to reduce the tax payable on lifetime transfers that are chargeable on death within seven years of the gift. Again, this is rather complicated and requires specialist advice.

Gifts and exemptions

More straightforward is the opportunity to mitigate inheritance tax by making smaller gifts or out of surplus income.

Everyone can make use of the £3000 per annum annual exemption which can be used to make gifts up to the total each year, and if the allowance is not used fully in any year, it can be carried forward one year.

On top of the annual exemption, the rules on small gifts allow individuals to gift up to £250 per recipient per year with no limit to the number of recipients. However, if you give more than £250 to any individual, you lose the exemption completely, even on the first £250. And you can’t use your small gifts allowance together with any other exemption when giving to the same person.

Looking at these two allowances together, if you had three children, ten grandchildren and four godchildren, you could make gifts of £1000 to each of your three children by using the annual exemption of £3,000 for all such gifts. Then you could give up to £250 per year to each of your grandchildren and godchildren using the small gift exemption. You cannot make an exempt small gift to your children as you have already used the annual exemption to make a gift to them. These allowances are automatic, but it’s a good idea to log and track the gifts as it makes it easier for your executors and simplifies dealing with HMRC.

Another opportunity is relief on gifts made out of surplus income, but the exemption for these gifts must be claimed by your executors after your death. Here, good record-keeping is vital, because to qualify as normal expenditure out of income it must:

Be part of a regular pattern of giving
Taking one year with another, be made out of income
After the gifts and other usual expenditure, you must be able to maintain your normal standard of livingAny other lifetime gifts you make, other than gifts into a trust, are known as potentially exempt transfers (PETs). A PET becomes an exempt gift if you survive the making of the gift by seven years. However, if you die within seven years of making the gift, the value must be brought into account when calculating inheritance tax due from the estate. Tapering relief may be available on the tax attributable to PETS if you die more than three years after the gift, but only if the total value of the lifetime gifts made in the seven years before your death exceeds the nil rate band in force at your death.If you’re concerned about inheritance tax and hope to mitigate it through gifting, asset transfer or the new residential property allowances, it’s important to check the position regularly. Getting it right, and reviewing any existing will, is key to making sure reliefs are maximized.
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So, to make such payments, you need to record in writing that you intend to make the gifts regularly and then keep a record of income and outgoings so that your executors will be able to demonstrate that you had surplus income from which the payments were made. Examples of the sorts of payments range from regular monthly payments to a grandchild’s savings account or payment of school fees through to regular gifts on special occasions.

Check list for the new inheritance tax residential nil rate band

ü You have direct descendants and intend to leave your residential property to one or more of them on your death

ü You have a total estate worth more than the current £325,000 IHT nil rate band per person threshold, but less than £2.35m overall

ü You have downsized or sold your residential property, or intend to, where the sale took place after 8 July 2015 and you have retained the proceeds

Web site content note:

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Author Archives: Emma Degenhart

A toolkit for family breakdown in the lockdown

By Sarah Scott, Family law expert with Oxley & Coward Solicitors LLP

Landlords must comply with latest energy standards

To make your home your castle, be sure who owns the drawbridge….

Wake-up call for small companies on bribery process

Tracking your digital worth for the next generation

The value of our online lives is worth billions of pounds but many of these assets may never be passed on, as people are failing to record their digital worth.

When mini breaks just don’t cut it

Businesses are on final countdown to the introduction of the General Data Protection Regulation in May 2018, bringing with it tighter rules and greater penalties for data processing, and the outcome of a landmark High Court case has made the preparation even more pressing.

Christmas celebrations for children are too often marked by family divisions when relationships break down.

Lessons for business from the #metoo headlines

Family finances make divorce negotiations increasingly complex

Divorce rates are on the rise, according to the latest statistics, and with the increase in the value of family assets, couples should do more to face up to financial affairs during the good times according to professionals.

Good practice vital for employers in managing tribunal claims

Local solicitor warns changes to powers of attorney may leave older and vulnerable at risk

Giving rookie renters a helping hand

Gender pay likely to stay in the spotlight

Accurate calculations of the National Minimum Wage continue to cause headaches for employers, with an employment tribunal acknowledging the complexity, saying there is no single key to unlock every case.

Understanding of mental health issues is high on the agenda, thanks to the involvement of the younger members of the Royal family in the Heads Together awareness campaign which has seen the #oktosay hashtag trending.

Springtime is traditionally the busiest time for the property market, but with a knotty problem affecting more homes than ever, it’s worth doing some horticultural homework before you start, whether you’re buying or selling.

Small suppliers set to get intel on big company payment performance

New regulations designed to help small businesses get paid on time came into force this month, with a requirement for larger companies to publish information about how long they take to pay suppliers.

When tweets become twibels….

Every business using social media should get to grips with publishing law and advertising regulations if they are to avoid reputation-damaging incidents.

Record numbers of inheritance disputes are going through the courts as modern family structures and rising house prices push more families to contest unfavourable outcomes.

The first steps towards preparing the UK for a post-Brexit future were announced by Chancellor Philip Hammond in his Spring Budget, which avoided headline-grabbing shake-ups and tax breaks in favour of economic stability.