1 in 4 women and 1 in 6 men will be subjected to domestic abuse. Many will not seek help, either from a solicitors or a GP.

The government defines domestic abuse as

’Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been partners or family members, regardless of gender or sexuality’

You can logon to Solicitors Family Law Association’s website (now called RESOLUTION) and download, free, their Toolkit for domestic abuse sufferers.

Website: Resolution
http://www.resolution.org.uk

The following is an extract of a letter from Wulvern Housing in relation to a query we raised on behalf of a client.

Can the tenant under a part-rent/part-buy arrangement with a Housing Association seek an extension of lease under the Leasehold Reform Act 1993?

’The Leasehold Reform Act 1993 gives a right to a qualifying tenant to call on their landlord to grant a lease extension. I agree that your client will not fall within the definition of a qualifying tenant however, this does not mean to say that she or her successors in title could not make a request to Wulvern for a lease extension. It seems to me that Wulvern is not obliged to grant such a request but there does not appear to be anything to stop it from doing so.

I have enclosed a note of the subject published by the then Housing Corporation in 2004, which encourages Housing Associations to grant extensions.

I cannot see why the Association would not want to grant an extension because it would derive additional income from it and preserve the value of the unsold equity in the flat. For this reason I will look to devise a policy for the Board to approve on this subject.

I am grateful to you for drawing my attention to this point.’

The position between the Leasehold Reform Act 1993 and a part-rent/part-buy tenant is clearly unsatisfactory, though in most cases it should not, it would seem, be too much of a difficulty in practice.

Why are things changing?

The powers inherited by the merged HM Revenue & Customs (HMRC) were unaligned and out of date. HMRC and its customers wanted a more tailored approach which allowed any ’checking’ action to respond to the particular circumstances in each case, to include the nature of the risk. To reflect this, new powers and a consistent set of safeguards are being introduced. These will apply for SDLT in respect of returns made on or after 1 April 2010.

What changes in April 2010?

The new legislation provides HMRC with:
• one set of powers to inspect business records, assets and premises • a non-appealable right to require production of statutory business records • a new power to correct obvious errors in a tax return based on information held by HMRC • a single approach across all taxes to asking taxpayers and third parties for supplementary information, based on formal information notices with a right of appeal

The legislation also makes some changes to the way HMRC must carry out compliance checks, including
• a ban on inspecting purely private dwellings without consent • a requirement for HMRC to give at least seven days prior notice of a visit, unless either an unannounced visit is necessary, or a shorter period is agreed • a new requirement that unannounced visits must be approved beforehand by a specially trained HMRC officer • a requirement on HMRC to act reasonably The new penalties for inaccuracies will be extended to most taxes for return periods starting on or after 1 April 2009, for documents that are due to be filed on or after 1 April 2010. • HMRC is also introducing one consistent penalty system across most taxes when people fail to notify a new tax liability or a new activity on which tax is due. • under the new system, if you take reasonable care to get your tax right, HMRC will not penalise you, even if you make a mistake.

What changes in April 2011?

The legislation makes some changes to the way HMRC must carry out compliance checks, including • a new four year time limit for assessments and claims • reductions in extended assessment time limits Where can I find out more?

Website: New Compliance Checks www.hmrc.gov.uk/compliance/faqs.htm

Website: Briefing on new penalties http://www.hmrc.gov.uk/about/new-penalties/faqs.htm

Website: New penalties for errors on tax returns and documents http://www.hmrc.gov.uk/about/new-penalties/index.htm

Some buyers are exempted from Stamp Duty for purchases up to £250,000

The Relief

For the relief to be available, the transaction must satisfy the following requirements:

• The property must be residential property. Non-residential or mixed use properties do not qualify

• All purchasers (including joint purchasers) must intend to occupy the property as their main residence

• The transaction must not be linked with any others for SDLT purposes

• The transaction must consist wholly of the acquisition of a major interest in land (defined as a freehold or a leasehold interest with more than 21 years to run)

• All purchasers (including joint purchasers) must not have previously acquired such an interest in land.

‘First Time Buyer‘

To be a ‘first time buyer‘, the purchaser must not have previously acquired an interest in a freehold or leasehold property. ‘Interest‘ includes previously owning property as either a joint tenant or tenant in common.

Interestingly, this applies not just to UK properties, but properties anywhere else in the world.

If buying jointly, all purchasers must satisfy this requirement.

Conveyancing Dept

Banks, Building Societies and their customers have been waiting for a long time for a final decision on whether overdraft charges can be imposed. The Supreme Court finally gave its decision in November 2009. The decision was confined to a particular point of law. The decision was that the Court cannot rule that overdraft charges generally are unfair. However it appears that there is nothing to prevent a Court looking into a particular transaction between Bank and customer to decide whether or not that particular transaction and the charges imposed, are unfair.

Charles Fox

It is intended that as from the 6th April 2010, Doctors will provide employees with ’A statement of fitness to work’ instead of a sick note.

The statement may say that the employee is not fit for work, or it may say that he/she is fit for work taking into account certain advice.

The advice may include a phased return to work, amended duties, altered hours or workplace adaptations.

Was the Dismissal Unfair

If an employer dismisses an employee, the employer may have to persuade an Employment Tribunal that the dismissal was fair. To do so, the employer will have to prove that it made a proper enquiry, had an honest belief in the facts found and made the decision to dismiss on reasonable grounds. It will also have to prove that the decision to dismiss (rather than to issue a warning for example), was within the range of reasonable responses to the particular conduct. Reference to the employee’s Contract and what is stated to be “gross misconduct” may be relevant.

Holidays from Work

Unless the employee’s Contract states to the contrary, a worker requesting to take leave or an employer requesting a worker to take leave at specified times must make the request at least twice the period of the leave to be taken.

As a general rule, untaken annual leave is lost at the end of the leave year and cannot be taken forward unless the employee’s Contract state to the contrary.

A recent Court case has decided that employees are entitled to holidays or pay in lieu during the leave year even if they are sick and that holiday entitlement continues to accrue during a sickness period.

Contracts of Employment and Staff Handbooks

Every employee whose employment lasts for at least one month must receive written details of the main terms and conditions of employment. The important ones must be included in a single document. Other particulars may be in another document or documents. Some employers provide staff handbooks. It is important for the employer to specify which terms in the staff handbook have contractual effect and which are merely policies for the better running of the business. The employer may be able to amend the policies without the employee’s consent but may not be able to amend the contractual terms and conditions without the employee’s consent.

Charles Fox

Since 6 April 2007 it has been compulsory to pay tenant’s deposits into one of the protection schemes. This must be done within 14 days of taking the deposit and Landlords must also notify their tenants of the scheme details within 14 days. Despite hefty penalties for not adhering to the scheme - compensation for the tenant of 3 times the value of the deposit and restrictions on obtaining possession of the property while the deposit remains unprotected - some landlords remain unaware of the law.

If you appoint a managing agent to deal with your let, ask them whether they are a member of one of the insurance based schemes. Most professional letting agencies are, and will usually register your tenant's deposit with the scheme for a small premium. The agent will keep the deposit once registered and it will be returned to the tenant at the end of the tenancy less any agreed deductions. If you can t agree on how much to deduct, the schemes provide a free adjudication service to avoid having to take the matter to the small claims court, which usually takes more time and expense than the value of the deposit warrants.

If you are managing your own let, you will generally need to lodge the money with a custodial scheme, again within 14 days of receiving it, and notify your tenant in the usual way when this has been done. The insurance based schemes are also open to private Landlords and you can register the deposit and obtain your certificate online.

It is also important to make sure that any fixtures and fittings in the property are listed in detail and both landlord and tenant should sign and keep a copy of the list before the tenancy starts, If you do not do this, a clued-up tenant can make an application to court to ask for an order that you pay them 3 times the deposit. With average deposits at around £800 it can be en expensive lesson. Complying with the scheme after the application to court is made but before the hearing won't necessarily get you off the hook either - there are two County Court decisions on the point, one of which ruled in favour of the Tenant and the other in favour of the Landlord. Until a higher court decides exactly how to deal with those set of circumstances, there's no guarantee available as to how your case will go. Don't take the chance - make sure you're quick off the mark and protect your deposit as soon as your tenant pays it over.

The three government authorised schemes are:

• The Deposit Protection Service (depositprotection.com, telephone 0870 707 1 707) is the only custodial deposit protection scheme. It is free to use and open to all landlords and letting agents. Landlords can register online while the scheme provides a template for the information to be provided to tenants.

Hall Smith Whittingham are registered under this scheme. If you are a landlord and ask us to deal with your lettings we will ensure that the requirements of the scheme are complied with.

• Tenancy Deposit Solutions Ltd (mydeposits.co.uk, telephone 0871 703 0552) .is an insurance-backed scheme jointly owned by the National Association of Landlords and Hamilton Fraser Insurance.

• Tenancy Deposit Scheme (thedisputeservice.co.uk, telephone 0845 226 7837) is an insurance backed scheme. Landlords can join online and access a range of related forms and documents.

It is important that landlords comply with the requirement to protect deposits since if they do not they can be ordered to repay the tenant three times the amount of the deposit. For the leaflet Letting? Are you protecting your tenant’s deposit? Go to direct.gov.uk/ewn/TenancyDeposit/DG_066385.

As from October 2009 the National Minimum Wage is increased as follows:-

• Workers aged 22 and over = £5.60

• Workers aged 18 to 21 = £4.83

• Workers aged 16 & 17 = £3.57

Charles Fox

An alternative to bankruptcy for an individual who is insolvent.

Introduction

New Legislation was introduced from 06 April 2009 to provide a further alternative to bankruptcy for an individual who is insolvent and cannot pay their debts and provides for a Debt Relief Order (DRO).

The introduction of DROs is intended to minimise the cost of dealing with your insolvent financial affairs and allow you to obtain relief from them. Bankruptcy can cost in excess of £500.

Qualifying for a DRO There are a number of requirements that you must meet before you qualify to apply for a DRO:

• You must be unable to pay your debts
• Your total debts must not be more than £15,000.
This does not include unliquidated debts (debts where the amount due is not yet known) or debts that cannot be included in a DRO (such as Student Loans, Fines etc.)
• Your total assets must not be more than £300.
It is important to note here that the £300 relates to the total value of your assets before charges such as a mortgage. In other words if you have a house with a mortgage (even if it is in negative equity) you will not qualify for a DRO.
• Your disposable income after deducting all normal living expenses, must not be more than £50 per month
• You must be living in England or Wales, or at any time during the last 3 years have been resident or carrying on business in England or Wales.
• You must not have been subject to a DRO within the last 6 years.
• You must not be involved in any other formal insolvency procedure at the time of the application for a DRO e.g. already be bankrupt or subject to an IVA.
• If you have presented your own petition for bankruptcy the court must have referred you to the DRO procedure.
• If you have been notified that a creditor has presented a bankruptcy petition against you, then you must get that creditor’s permission to apply for a DRO.


How to obtain a DRO
Providing you meet the criteria, the procedure for obtaining a DRO is relatively simple:

• The application can only be made on-line with the assistance of an approved intermediary (details of these are given below)
• A fee of £90 must be paid (compared to £500 or so for a bankruptcy) to the Official Receiver; and
• The Official Receiver then assesses the on-line application and if appropriate makes the DRO.


How does a DRO affect you?
When a DRO is made the effect of this is:

• It provides you with protection from enforcement action by your creditors, i.e. they cannot pursue you any more for their debt; • The DRO normally lasts for up to 12 months and after that period the debts are written off; • It imposes certain restrictions (very similar to bankruptcy) on you. The main restrictions are not being able to obtain credit of more than £500 without saying you have a DRO, and you cannot be a director of a limited company or be involved in the promotion, formation or management of a limited company. • There are some other restrictions not detailed here.

A DRO is very similar to bankruptcy and virtually all the restrictions placed on you are the same.

It is important to note that a DRO is a very good solution for someone with relatively uncomplicated financial affairs. The Official Receiver will not generally investigate your affairs but is able to do so if he suspects you have not made a full disclosure in your application or if a creditor makes a complaint about you obtaining a DRO.

A DRO should therefore not be considered as an 'easy way out' of dealing with your financial affairs. It is there to assist someone who would normally have gone down the bankruptcy route, but has a relatively low level of debts and assets and cannot afford the costs of their own bankruptcy petition. If you are found to have been 'less than honest' then rather than lasting for 12 months, a DRO can be extended (together with all of its restrictions on you) for up to 15 years depending on how serious it is!

Approved intermediaries
The following authorities are charities which can put you in touch with an approved intermediary:

Citizens Advice Bureau
Myddelton House
115-123 Pentonville Road
London
N1 9LZ


Telephone: 0207 833 2181
Website: www.Citizensadvice.org.uk

National Debtline
Tricorn House
51-53 Hagley Road
Edgbaston
Birmingham
B16 8TP


Telephone: 0121 410 6247
Website: www.nationaldebtline.co.uk/england_wales/

Consumer Credit Counselling Service
Wade House
Merrion Centre
Leeds
LS2 8NG

Telephone: 0800 138 1111 (Mon-Fri 8am-8pm)
Website: www.cccs.co.uk

Source
DSi Services
www.dsiservices.co.uk

The Daphne Project is a European initiative to help combat Domestic Violence. See following download for details and information. (approx 1 MegByte)

Daphne Booklet 5 - click here

A useful guide and advice has been given by Christina McGhee of DIVORCE and CHILDREN.

Parenting Apart - click here

An alternative to bankruptcy for an individual who is insolvent.

Introduction

New Legislation was introduced from 06 April 2009 to provide a further alternative to bankruptcy for an individual who is insolvent and cannot pay their debts and provides for a Debt Relief Order (DRO).

The introduction of DROs is intended to minimise the cost of dealing with your insolvent financial affairs and allow you to obtain relief from them. Bankruptcy can cost in excess of £500.

Qualifying for a DRO There are a number of requirements that you must meet before you qualify to apply for a DRO:

• You must be unable to pay your debts
• Your total debts must not be more than £15,000.
This does not include unliquidated debts (debts where the amount due is not yet known) or debts that cannot be included in a DRO (such as Student Loans, Fines etc.)
• Your total assets must not be more than £300.
It is important to note here that the £300 relates to the total value of your assets before charges such as a mortgage. In other words if you have a house with a mortgage (even if it is in negative equity) you will not qualify for a DRO.
• Your disposable income after deducting all normal living expenses, must not be more than £50 per month
• You must be living in England or Wales, or at any time during the last 3 years have been resident or carrying on business in England or Wales.
• You must not have been subject to a DRO within the last 6 years.
• You must not be involved in any other formal insolvency procedure at the time of the application for a DRO e.g. already be bankrupt or subject to an IVA.
• If you have presented your own petition for bankruptcy the court must have referred you to the DRO procedure.
• If you have been notified that a creditor has presented a bankruptcy petition against you, then you must get that creditor’s permission to apply for a DRO.


How to obtain a DRO
Providing you meet the criteria, the procedure for obtaining a DRO is relatively simple:

• The application can only be made on-line with the assistance of an approved intermediary (details of these are given below)
• A fee of £90 must be paid (compared to £500 or so for a bankruptcy) to the Official Receiver; and
• The Official Receiver then assesses the on-line application and if appropriate makes the DRO.


How does a DRO affect you?
When a DRO is made the effect of this is:

• It provides you with protection from enforcement action by your creditors, i.e. they cannot pursue you any more for their debt; • The DRO normally lasts for up to 12 months and after that period the debts are written off; • It imposes certain restrictions (very similar to bankruptcy) on you. The main restrictions are not being able to obtain credit of more than £500 without saying you have a DRO, and you cannot be a director of a limited company or be involved in the promotion, formation or management of a limited company. • There are some other restrictions not detailed here.

A DRO is very similar to bankruptcy and virtually all the restrictions placed on you are the same.

It is important to note that a DRO is a very good solution for someone with relatively uncomplicated financial affairs. The Official Receiver will not generally investigate your affairs but is able to do so if he suspects you have not made a full disclosure in your application or if a creditor makes a complaint about you obtaining a DRO.

A DRO should therefore not be considered as an 'easy way out' of dealing with your financial affairs. It is there to assist someone who would normally have gone down the bankruptcy route, but has a relatively low level of debts and assets and cannot afford the costs of their own bankruptcy petition. If you are found to have been 'less than honest' then rather than lasting for 12 months, a DRO can be extended (together with all of its restrictions on you) for up to 15 years depending on how serious it is!

Approved intermediaries
The following authorities are charities which can put you in touch with an approved intermediary:

Citizens Advice Bureau
Myddelton House
115-123 Pentonville Road
London
N1 9LZ


Telephone: 0207 833 2181
Website: www.Citizensadvice.org.uk

National Debtline
Tricorn House
51-53 Hagley Road
Edgbaston
Birmingham
B16 8TP


Telephone: 0121 410 6247
Website: www.nationaldebtline.co.uk/england_wales/

Consumer Credit Counselling Service
Wade House
Merrion Centre
Leeds
LS2 8NG

Telephone: 0800 138 1111 (Mon-Fri 8am-8pm)
Website: www.cccs.co.uk

Source
DSi Services
www.dsiservices.co.uk

Stamp duty land tax (SDLT)

• The SDLT holiday announced by the Chancellor in September 2008 is extended to 31 December 2009. This means that the threshold for residential property will be £175,000. After 31 December 2009, the residential threshold will revert to £125,000.

Legislation will be introduced in Finance Bill 2009 to:

• extend favourable SDLT treatment to purchasers under shared ownership schemes operated by profit-making Registered Providers of Social Housing, where the scheme is assisted by public subsidy;

• extend the SDLT relief for purchases by Registered Social Landlords (RSLs) to profit-making Registered Providers of Social Housing where the purchase is assisted by public subsidy; and

• simplify the SDLT treatment of purchasers under rent to shared ownership ('Rent to HomeBuy') schemes.

The provisions for rent to shared ownership schemes apply where the effective date of the grant of the shared ownership lease, or the declaration of the shared ownership trust, under the scheme is on or after Budget Day, 22nd April 2009. The remaining provisions will only become effective when the legislation providing for Registered Providers of Social Housing comes into force (expected in late 2009 or early 2010).

• change the rules for the SDLT relief for leaseholders of flats purchasing the freehold of their block under a statutory right of leasehold enfranchisement.

This removes the requirement that the relief can only be claimed by a statutory 'Right to Enfranchise' (RTE) Company. The change will ensure that the relief can be claimed by those who are exercising statutory rights of leasehold enfranchisement. It applies to purchases where the effective date is on or after Budget Day, 22nd April 2009.

• Legislation will be included in the Finance Bill to introduce reliefs from charges to SDLT where people raise finance by issuing alternative finance investment bonds backed by land assets. Further legislation will set out the capital allowances consequences in relation to arrangements covered by the SDLT and capital gains tax measures.

• HMRC have published a consultation document entitled 'Disclosure of Tax Avoidance Schemes (DOTAS): Stamp Duty Land Tax' and exposed draft regulations to extend the Tax Avoidance Disclosure Regime to cover SDLT on high value residential property. The consultation includes options to extend the rules to identify users of all disclosed SDLT schemes.

Stamp Duty/Stamp Duty Reserve Tax (SDRT)

Legislation will be introduced in Finance Bill 2009 to:

• provide relief from unexpected stamp duty and SDRT charges that would otherwise arise where a stock lending or sale and repurchase arrangement terminates. (So that stock is not returned to the originator under the terms of the arrangement due to the insolvency of one of the parties to the arrangement.)

Source - HMRC

The Government has increased Land Registry Fees by about 25% from 6 July 2009 on most transactions - including registering new home purchases. These fees, for effectively managing the Government's Land Registry database, are now almost as much as solicitors charges for dealing with the whole transaction!

The cost is now £200 for a house worth over £100,000 and £280 for a house worth over £200,000. Other effective taxes include VAT on solicitor's costs and Stamp Duty.

If the new fees are not an additional tax, what are they for? Has the government finally blown it's cover of continuing to blame solicitors for the rising costs of home buying? Remember the HIP?

Chris Dodd

The Law Society is warning parents to be careful when making loans to their children. The warning comes in the light of restrictive lending conditions in the mortgage market which have required young people to stump up large deposits when buying their first home.

The parents must decide whether they are making a loan, a gift or taking part ownership in the property. If they are making a loan they must decide on the terms of the loan. These terms must be set out in writing and should state at least the amount of the loan, the rate of interest payable, how and when the capital is repayable.

If it is not clear that a loan has been made then the money may never be returned as it may be treated as being a gift. The Law Society cite the case of parents making a £ 150,000 loan to a married child without documenting the loan. Unfortunately for all parties the child died, but the parents were dealt a double blow when they discovered he died intestate. This meant that all he owned passed to his widow. As there was no evidence of a loan the £ 150,000 could not be recovered.

If a loan is made at interest, the interest will be charged to income tax on the parents.

If the parents take part-ownership of the property, their share of any capital gains on sale of the property will be chargeable to capital gains tax, as it is not their main residence.

If the parents make a gift this will be a potentially exempt transfer for IHT purposes.

Kay Masters

The Law Society is warning parents to be careful when making loans to their children. The warning comes in the light of restrictive lending conditions in the mortgage market which have required young people to stump up large deposits when buying their first home.

The parents must decide whether they are making a loan, a gift or taking part ownership in the property. If they are making a loan they must decide on the terms of the loan. These terms must be set out in writing and should state at least the amount of the loan, the rate of interest payable, how and when the capital is repayable.

If it is not clear that a loan has been made then the money may never be returned as it may be treated as being a gift. The Law Society cite the case of parents making a £ 150,000 loan to a married child without documenting the loan. Unfortunately for all parties the child died, but the parents were dealt a double blow when they discovered he died intestate. This meant that all he owned passed to his widow. As there was no evidence of a loan the £ 150,000 could not be recovered.

If a loan is made at interest, the interest will be charged to income tax on the parents.

If the parents take part-ownership of the property, their share of any capital gains on sale of the property will be chargeable to capital gains tax, as it is not their main residence.

If the parents make a gift this will be a potentially exempt transfer for IHT purposes.

Kay Masters

If the introduction of the crime of breach of a non-molestation order by the Domestic Violence Crime and Victims Act 2004 is going to improve the outcomes for domestic abuse suffers there will need to be dialog between prosecutors and family lawyers.

When the civil court sentences for breach of an injunction it has before it all the statements relating not only to the breach but also those that were filed when the application for the injunction was made. The court also has the findings of domestic abuse made by the Judge at any previous on notice hearing. The domestic abuse sufferer is represented by her lawyer who will bring to the attention of the court the abuse that resulted in the application for the injunction and the family circumstances and issues relevant to children and their contact with the perpetrator.

Resolution’s 5000 members are family lawyers who are committed to a constructive resolution of family disputes. When dealing with domestic abuse cases this involves a holistic approach. The family lawyer will consider the impact of the domestic abuse on any children of the parties and how that should be dealt with when issues relating to the residence of the children or their contact with the perpetrator is being considered. The need to protect the domestic abuse sufferer from further abuse when arrangements are made concerning the future accommodation of the sufferer and future financial arrangements with the perpetrator also has to be considered. Previously all this would be part of the remit of the lawyer when dealing with the breach of a non-molestation order because the civil court would not only sentence for the breach but also make a longer injunction with tighter provisions in order to provide increased protection.

Since the Domestic Violence Crime and Victims Act 2004 the family lawyer is out of the loop when there is a breach of a non-molestation order, if the perpetrator is charged with the breach. The domestic abuse sufferer is a witness not a party to the proceedings and the court is only dealing with the crime charged. Previous violence and breaches of orders are aggravating factors on sentencing, however. This information is on the civil court file but is it routinely available to the prosecutor? Domestic abuse sufferers are often reluctant to talk about past violence – they can re-live it when they talk about it. With their consent their family lawyer can provide information to the prosecution from their file and copies of court documents. (Leave of the court is required to disclose documents from children proceedings).

The Respondent is only bound by the order if he is aware of its terms from either being in court when the order was made, having the order read to him or served upon him. The statement of service served on the police with the order should make this clear. If it does not the family lawyer, who will have arranged service of the order on the Respondent, may have more information such as a report from the process server.

The civil courts are now making non-molestation orders that are far more specific than the previous orders not to molest, harass or pester. There will be a prohibition of the type of harassment that the sufferer has been subjected to, such as a prohibition on telephoning or sending text messages. If the order has proved too imprecise to enforce the family lawyer needs to know what improvements can be made and make an application to the civil court to vary the original order to provide better protection for the future.

The family lawyer may be dealing with other issues for the domestic abuse sufferer, such as child contact. Bail conditions imposed or varied by the criminal court could be relevant to contact arrangements. The domestic abuse sufferer will have been informed of these but is often confused as to the actual conditions. Also the progression of the criminal case and the outcome and sentence can affect how safe the domestic abuse sufferer feels and whether she will engage in civil proceedings with the perpetrator. The family lawyer needs information about the criminal case in order to progress related civil proceedings effectively.

The exchange of information between the prosecution and the family lawyer could improve the outcomes in not only criminal proceedings but also related civil proceedings involving the parties and their children.

Jane Wilson
Solicitor-Advocate (Higher Courts Civil Proceedings)
Chair Resolution Domestic Abuse Committee
Hall Smith Whittingham Solicitors, Crewe

ACAS have published a new Code of Practice on discipline and grievance which will become law in April 2009. It does not apply to dismissals due to redundancy or non renewal of fixed term contracts.

The employer should still have written disciplinary and grievance procedures. The requirements are similar to those presently in force. However the emphasis will be on flexibility and speed of resolution.

However, failure by an employer to follow the Code will not be automatic unfair dismissal, but if the Code is not reasonably followed, an Employment Tribunal can award up to 25% more to an employee or reduce an employee’s award by 25% if he/she has behaved unreasonably.

Employees will no longer have to raise a formal grievance if they have a complaint against their employer.

Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently.

Charles Fox

HM The Queen has appointed Glynis Crowe to be a District Judge on the advice of the Lord Chancellor, the Right Honourable Jack Straw MP. The Right Honourable The Lord Judge, Lord Chief Justice of England and Wales has assigned her to the Midland Circuit, based at Stafford County Court with effect from 2 March 2009.

Glynis has been a highly respected solicitor practising in South East Cheshire, and across the North West region, over many years in Family work and in the highly specialised field of child care. It is with a mixture of pride at her accomplishment, and sadness that she will be leaving private practise, that the firm congratulates Glynis and wishes her equal success in her new judicial career.

The law lords have backed brewers Scottish & Newcastle over an attempt to reclaim rent on a hotel building.
Scottish & Newcastle’s solicitor said the Court of Appeal’s decision on the case last year caused "consternation" in the commercial property world and threatened the ability of landlords to reclaim millions in rent arrears.
Delivering judgment in Scottish & Newcastle v Raguz [2008] UKHL 65, Lord Scott said the brewers assigned two underleases to a building in Leicester Mr Raguz in 1982, which he later assigned to another company.
By 1999, the underleases were owned by a company which went into administration, defaulting on the rent. The reversion was owned by National Car Parks (NCP).
A rent review was already under way, resulting in greatly increased rents for both underleases being fixed in 2000 and 2001. Following this, NCP demanded around £500,000 in unpaid rent from Scottish & Newcastle as original tenants. The brewers paid, and claimed the money from Raguz as assignee, on the basis of the statutory indemnity covenant implied into all assignments by section 24 of the Land Registration Act 1925. Raguz argued that NCP had failed to preserve their rights against S & N by correctly serving notices under Section 17(4) of the Landlord and Tenant (Covenants) Act 1995.
As a result, Raguz argued that S & N did not need to pay NCP the additional rent for the period between the rent review date and the day when the revised rent was set.
Rejecting this argument, Lord Scott said it would be a "ridiculous conclusion" for section 17 to be construed in such a way that an original tenant would be obliged to serve a notice on an assignee during a rent review every six months, whether or not the current tenant was in default, and specifying the amount unpaid as "nil".
He went on: "The original tenant would surely not expect to be given notice of a process under which nothing is yet due and in respect of which there is no default on the part of the current tenant."
Lord Scott rejected a further argument by Raguz that S & N’s final payment to NCP included sums that the brewers were under no legal liability to pay.
He dismissed the appeal by Raguz and allowed S & N’s cross-appeal against the decision of the Court of Appeal that the rent review increases could not be recovered because of the failure to serve notices correctly.
Lords Hoffman and Brown concurred. Lords Walker and Hope agreed that the appeal should be dismissed but allowed the cross-appeal to only a limited extent.
Lord Walker said the original tenant’s failure to serve notices "made irrecoverable any instalments of the balance of the revised rent which had already notionally accrued".
Paul Moorcroft, head of real estate litigation at Eversheds acted for Scottish & Newcastle. He said: "The previous interpretation of the section had been met by consternation in the commercial property sector, as it put at risk (in times of financial stringency) landlords’ ability to recover many millions of pounds of rent arrears.
"The new ruling is a significant boost for the sector as it allows for less complex property management, is likely to cut legal fees and reduces risk for landlords and their solicitors."

Source - The Solicitors Journal

We recommend you use the link below to view a useful new home improvement or development animated guide in force from 1st October 2008.

New planning portal houseguide - click here

Phil Everall

From October 2008, extensions of up to two storeys will be permitted as long as they extend no more than 10ft from the back of an existing property, enough for a small kitchen or spare bedroom.

Loft conversions will also be allowed without planning consent, as long as they extend no more than 20cm (about 8in) from the eaves of a property. They must also be no more than 50 cubic metres in size, roughly the equivalent of a room 18ft by 12ft. In conservation areas, loft conversions will still be restricted but single-storey rear extensions will be permitted.

However, there will be new restrictions on home owners who want to pave their front gardens. In order to cut down on the volume of water flowing off driveways into drains, home owners will need planning permission if they want to lay more than five square metres of asphalt or other impermeable materials.
Paving in two strips to act as ’wheel tracks’ for parking will effectively escape the restrictions, as will driveways using water-permeable surfaces.

By extending the ’Permitted Development’ regime, ministers aim to prevent unnecessary applications for relatively minor alterations.

As long as building projects fall within the new limits, neighbours will not be able to object. Government officials say the new restrictions have been set to ensure that no “obtrusive” developments will escape the planning system.

Local councils will have discretion to vary the rules, meaning that people in heavily-developed areas may not get as much freedom to develop even under the new rules.

Building regulations will remain in place, meaning that householders will still have to demonstrate that alterations are constructed to health and safety standards.

Phil Everall

From 1st October 2008 all new lettings will require an Energy Performance Certificate (EPC) to be made available to the prospective Tenant before the agreement is concluded.

Click link for further information

EPC requirements for private lettings - click here

We can arrange one for you

October marks the final roll-out of energy certificates to all buildings and today (Tuesday, 9 September 2008) Communities and Local Government has updated the Energy Performance of Buildings regulations for Energy Performance Certificates, responding to consumer and industry needs. The infrastructure is in place to support 1st October 2008 go live date when the certificate will be extended to rented homes, commercial properties under 2,500m2 and all remaining homes for sale including those on the market before the phased introduction of EPCs for domestic properties in 2007. By 1st October public buildings will also need to have a Display Energy Certificate.
Since being introduced in 2007, more than one million Energy Performance Certificates (EPCs) have been produced and registered in England and Wales with the average rating being a ’C’ for commercial properties and a ’D’ for homes.
The measures which come into force for October include:
• extending the validity period of the EPC for homes when marketed for sale
• currently one year - to three years. This has been the result of extensive consultation; and
• clarifying arrangements for the October roll-out for commercial buildings already on the market which will be similar to those put in place in April and July. This means that any non-domestic building on the market before 1st October and remaining on the market will need an EPC by 1st January at the latest. If it is sold or rented out in the meantime, an EPC must be commissioned and then handed over as soon as is practicable. This measure is intended to make it easier for owners and landlords to comply with the legislation, avoid market fluctuations and is in response to expectations from the industry. October marks the completion of the introduction of EPCs. The full timetable is below:
Homes:
• Since 1st August 2007 all homes going on the market with 4+ bedrooms have required an EPC when sold
• Since 10th September 2007 all homes going on the market with 3+ bedrooms have required an EPC when sold
• Since 14th December 2007 all homes going on the market with one or more bedrooms have required an EPC when sold
• Since 6th April 2008 all new-built homes have required an EPC
• From 1st October all remaining homes for sale (including those which had been on the market from before the above dates) will require an EPC and all homes for rent will require an EPC when newly rented.
Commercial:
• Commercial buildings also require an EPC when built, sold or rented. Since 6th April 2008 this has applied to buildings over 10,000m2; since 1st July 2008 to buildings over 2,500m2.
• From 1st October they will apply to all remaining commercial buildings.
Notes
1. The package forms part of EPBD regulations laid before Parliament on Tuesday, 9th September. A copy of the regulations will be available later this week on the Office of Public Sector Information website www.opsi.gov.uk. The summary of responses on the EPC validity consultation will be available on the Communities website shortly.
2. More information on Energy Performance Certificates and the other measures being introduced to improve energy efficiency of buildings is available on Communities website www.communities.gsi.gov.uk/epbd

(Reported Crewe and Nantwich Chronicle 16 July 2008)

Senior partner Jane Wilson is joining forces with one of Britain's top law makers to introduce a Bill in the House of Lords this autumn. As a member of Resolution, a national organisation of family lawyers, Jane is supporting the Bill as part of a new campaign to end the injustice and financial hardship faced by thousands of cohabiting couples, carers and siblings who live together.
The Bill to give rights to couples who live together will be introduced by Lord Lester of Herne Hill QC, a veteran human rights lawyer who successfully introduced the Forced Marriages Bill and was instrumental in developing the recent Civil Partnership Act.
"It is a scandal in modern Britain that existing law does almost nothing to prevent people from losing their home or sliding into poverty if their relationship breaks down or their partner dies," says Jane.
"Sensibly drafted legislation is urgently needed to tackle the vulnerability not only of unmarried cohabiting couples and their children but also co-dependent carers and siblings who live together."
The Bill's introduction is part of a new "Living Together" campaign, launched today by Resolution and Lord Lester's Odysseus Trust.
Joyce and Sybil Burden, the elderly sisters who took their 30-year fight to protect their home from inheritance tax right up to the European Court of Human Rights, have added their support to the campaign:
"We have always tried to secure each other's future after the death of one, but have found it impossible under this system. It was a bitter disappointment to lose our case at the European Court. We do hope you can help us, as after all these years, we are getting quite past it for ourselves."
One in six couples in the UK co-habit and do not marry according to the Office of National Statistics and this is predicted to rise to one in four by 2031. More than half of cohabitants (53%) still falsely believe in the existence of Common Law marriage. However, the Government has decided to postpone action on recent Law Commission proposals to reform cohabitation law pending research into the cost and benefits of reforms introduced in Scotland.
Lord Lester says that Britain's more than two million cohabiting couples and co-dependents should not be made to wait any longer for justice:
"The Government's proposed research won't even begin until 2010 and if cost was the issue, one has to ask why the Government specifically excluded research on cost from the Law Commission's original brief. Many other countries, including Canada, Australia and New Zealand already have protection for cohabiting couples. It is high time that Britain had a family legal system fit for the 21st century."
The Government's timid response also flies in the face of growing popular support for reform.
Findings from the British Social Attitudes Survey, published earlier this year, show that almost nine out of ten people think that a cohabiting partner should have a right to financial provision if their relationship is a long-term one, has involved prioritising one partner's career or includes children.
The campaign will also look at ways to extend protection to those who cannot marry but nevertheless live together in a co-dependent way. For example, it would cover siblings such as the Burden sisters, elderly parents and children who live with them and care for them.
The Bill would protect the vulnerable without equating living together to marriage or civil partnership in every way. For example, the Bill would apply only to people living in the same household for a minimum period of time in which the parties have provided a financial or other commitment to each other.
To protect freedom of choice, couples who wish to do so could "opt out" of the scheme provided legal advice is sought by both parties to protect the vulnerable.

The DWP have apparently restored the BR19 State Pension Forecast service, although unfortunately access is only currently available online (post and phone access to follow by Christmas)
Click
Department of Pensions - click here

A useful link for Cheshire Roads
Click
Cheshire Roads - click here

Cheshire County Council’s records office has recently completed the digitisation of various maps for Cheshire, which includes related aerial photographs, in particular:-
Historic tithe maps
Ordnance Survey 1875 edition
Ordnance Survey 1910 edition
Modern Ordnance Survey
Aerial photographs 1970
Aerial photographs approx 2000/2003
These may be helpful with regard to boundary disputes when historic evidence of boundaries, may be helpful.
Click here for OS and Tithe Maps

Background
Shared ownership purchasers acquire a lease, for which they pay a premium representing a percentage of the market value of the property, and rent in respect of the remainder. They may be able to make further capital payments (which will increase their share and reduce the rent payable) and ultimately to acquire the freehold. This is known as 'staircasing'.
SDLT and Shared Ownership
• Shared ownership purchasers can elect to pay SDLT at the outset on the market value of the property. In this case there will be no further SDLT charges at any stage.
• If no election is made, SDLT will be charged on the initial purchase in the normal way – that is, on the premium and the net present value of the rent payable under the lease. (In practice it is very unlikely that any tax will be due on the rent.)
• There is then a special SDLT relief which means staircasing payments are not charged to SDLT until an 80 percent share of the property is reached.
• Any further 'staircasing' payments which take the purchaser above this level - including the acquisition of the freehold, will attract SDLT.
Budget Measure
• The measure announced in the Budget abolishes, from Budget Day, the so called '£600 rule' for residential leases. This rule meant that, where the annual rent under the lease (not the NPV) exceeded £600, SDLT applied at 1 per cent on the premium even where this was below the SDLT threshold (£125,000, or £150,000 in a disadvantaged area).
• The special rules for shared ownership purchasers have not changed, but in practice these purchasers were often hit by the £600 rule because their initial payment was below the threshold but their annual rent was more than £600.
Effect of the Measure for shared ownership purchasers
• Where a market value election is not made, no SDLT will be payable on the premium where this does not exceed the SDLT threshold (£125,000, or £150,000 in a disadvantaged area), whatever the annual rent paid. If the premium is more than this, SDLT will still be charged on the whole premium at 1 per cent (and at higher rates in the unlikely event that the premium exceeds £250,000).
• No tax will be payable on 'staircasing' payments which do not take the purchaser above an 80 per cent share of the property.
• Any further 'staircasing' payments which take the purchaser above this level - including the acquisition of the freehold, will attract SDLT. Tax will be payable on the amount actually paid at the appropriate rate in force at the time the payment is made.
• The rate of tax charged on these further 'staircasing' payments will be based on the total capital payments made to date – that is, on the initial premium and all 'staircasing' payments, regardless of whether any tax has previously been paid on them. This is because the various payments are treated as 'linked transactions' for SDLT purposes.
Example 1
Market value of the property is £220,000.
Initial lease premium is £110,000, representing a 50 per cent share of the property. SDLT payable is nil (because this amount is below the SDLT threshold).
First 'staircasing' payment is £55,000, taking the purchaser’s share to 75 per cent. SDLT payable is nil (this payment attracts relief as it doesn’t take the purchaser’s share over 80 per cent).
Final 'staircasing' payment is £55,000, taking the purchaser’s share to 100 per cent including acquisition of the freehold. SDLT is payable at 1 per cent on £55,000 (because the rate of SDLT is determined by the total of all payments made, that is £220,000).
Example 2
Market value of the property is £220,000.
Initial lease premium is £165,000, representing a 75 per cent share of the property. SDLT is payable at 1 per cent on £165,000 (because this amount is above the SDLT threshold).
Final staircasing payment is £55,000, taking the purchaser’s share to 100 per cent including acquisition of the freehold. SDLT is payable at 1 per cent on £55,000 (because the rate of SDLT is determined by the total of all payments made, that is £220,000).
Source
HMRC website - click here

Fire Safety Regulations were amended from October 2006 to put the obligation on an employer/property owner to carry out regular risk assessments in respect of fire and to put in place fire safety procedures as a result of risk assessments.

There is no requirement to carry out fire drills at any particular interval. The number of fire drills that are necessary will depend upon the risk assessment. A high risk industry or a high staffed turnover or significant changes to the premises may give rise to the need for more regular fire drills. Drills should be held at least once per year in any event.

Records should be kept of risk assessments and drills.

At the moment, employers have a duty to inform and consult with their staff if they employ at least 100 employees in the United Kingdom. The information and consultation relates to:-

1. Recent and probable developments of the businesses activities and economic situation. For this there is a requirement to provide information but not consult.

2. Information on the situation, structure and probable development of employment within the business and of any anticipatory measures (in particular where there is a threat to employment). Here there is a requirement to provide information and to consult.

3. Decisions likely to lead to substantial changes in work organisation or on contractual relations (including collective redundancies and business transfers). Here there is a requirement to provide information and to consult “With a view to reaching agreement” with the staff.

As from the 1st April 2008 these obligations are extended to employers with at least 50 employees.

The penalty for breach is a fine but failure could also be used by employees as evidence against their employers in claims.

As from the 1st October 2007 the Government is working towards including an allowance equal to statutory public holidays into every employee’s holiday entitlement.

In any holiday year beginning on or after the 1st April 2008, holiday entitlement is increased from 20 to 24 days per annum.

In any holiday year beginning on or after the 1st April 2009, holiday entitlement is increased from 24 to 28 days per annum.

These increases work pro-rata from the 1st October 2007.

An employee still does not have the right to take a holiday on a Bank Holiday.

A fraction of a day’s entitlement is entitled to a whole day’s entitlement in the employee’s first year under the new scheme.

The deposits taken for any Assured Shorthold Tenancy created after the 6th April 2007 will be protected by new Rules. Rules also relate to new Assured Shorthold Tenancy Agreements between an existing landlord and tenant.

The aim of the new Rules is to ensure that tenants who are entitled to the return of all or part of their deposit, will get it back at the end of the tenancy without difficulties which have occurred to date.

Landlords can chose between two schemes, the custodial scheme or the insurance based scheme.

Under the custodial scheme, deposits are passed on to a third party who will hold the deposit if there is a dispute about whether it should be returned in part or in full, until the dispute is settled by Court proceedings or dispute resolution.

In the insurance based scheme, the landlord pays a premium to an insurer and the tenant must be notified. If at the end of the tenancy there is a dispute about the return of all or part of the deposit, the landlord would be required to pay the amount of the deposit to a third party pending resolution of the claim by dispute resolution. If the landlord fails to lodge the disputed amount, it will be covered by the scheme insurance.

If the landlord fails to use either of these schemes, they will not be able to obtain possession by giving two months notice as normal, or the tenant can apply to the Court which can order the landlord to comply with the schemes or to return the deposit and as a deterrent, the Court must order the landlord to pay the tenant three times the amount of the deposit.

These schemes cannot be contracted out of.

As from the 2nd April 2007 all employers, employees, customers and visitors will no longer be permitted to smoke within any workplace or premises open to the public if those premises are enclosed or substantially enclosed. This also applies to work vehicles.

Every business must display designated no smoking signs as appropriate.

Local Authorities enforced the Regulations. There are fines for both individuals and Managers who smoke or allow people to smoke in restricted areas.

The right to request flexible working has been available to categories of employees for quite some time. As from the 1st October 2007 flexible working will be extended to a wider range adopters and foster carers.

The Government has announced today that HIPs are to be required for the sales of ALL NEW property sales after the 14th December 2007.

It has also been confirmed that ‘First Day Marketing‘ will continue until 1st June 2008, until this date you only have to commission and pay for a pack in order to market your property

The government has dropped the expensive requirement for a Home Inspection Report - a survey before sale. Most knowledgeable commentators thought this idea to be unworkable.
Everything needed for the pack is within the usual work done by solicitors in any event. The only real additional feature is the †Energy Performance Certificate, which must be prepared by a qualified Inspector.

The pack is now intended to include:
INDEX
†Energy Performance Certificate
(The Energy Performance Certificate will be in a similar format to the coloured chart you often see displayed on new electrical goods for example, new fridges!)
AND
• The terms of sale (the Contract)
• Evidence of the legal title to the property
• Replies to standard preliminary enquiries on behalf of buyers
• Copy planning permissions and or building regulations approvals relating to the construction of the property and any additions and or alterations
• For new properties, copies of warranties and guarantees
• Any guarantees relating to work carried out at the property
• Replies to searches to include Local Authority and Water/Drainage (Environmental and optional searches to be completed according to the properties location)

In addition for Leasehold properties:
• Copy lease
• Most recent service charge accounts and receipts
• Buildings insurance policy details and payments receipts
• Regulations made by the Landlord or management Company
• Memorandum and articles of the Landlord or Management Company

More family friendly employment rights will be available to employees next April involving maternity and paternity benefits and flexible working.

All women who qualify for ordinary maternity leave will automatically qualify for additional maternity leave if their expected week of childbirth is on or after the 1st of April 2007. Therefore they are entitled to 52 weeks maternity leave regardless of length of service. Maternity pay will be extended from 26 weeks to 39 weeks.

Women will then have to give 8 weeks rather than 4 weeks notice to their employer of their wish to return to work. Employers and employees will be entitled to make reasonable contact with each other during maternity leave, and with the agreement of the employer, women will be able to do up to 10 days work during their maternity leave to ‘keep in touch‘ without affecting their benefit rights.

Employed fathers are presently entitled to take 2 weeks statutory paternity leave within the first 8 weeks following the birth of their child. The government is proposing to give the right to a further 26 weeks maximum leave to be taken before the child‘s 1st birthday but only if the mother has returned to work. There will be provision for statutory paternity pay to be extended to cover this period.

It will be unlawful for any employer to prevent an employee from returning to the same or a similar job at the end of maternity or paternity leave.

For 3 years, flexible working has been the right of certain employees who care for a child or children under the age of 6. Those employees have the right to request a variation to the terms and conditions of their employment which the employer must consider. From the 6th of April 2007 the flexible working rules will be extended to people to care for sick, disabled or elderly partners or relatives.

Charles Fox

On 1st October 2006 the Fire Safety Order 2005 came into force. In the coming months this should become a ‘hot‘ topic for many local businesses.

It will apply to all non-domestic premises, which includes the common parts of flats.

In summary, all fire certificates and plans cease to be valid and the standards previously set by the Fire Service will be replaced by a system of risk-based assessment, whereby accountability lies firmly with 'the responsible person'. This is the employer in a work place or any other person who may have control of any part of the premises for example an owner or occupier.

At the core of the legislation lies the fire risk assessment This is an organised appraisal of work activities and premises to enable identification of potential fire hazards, and a decision on who (including employees and visitors) might be in danger in the event of fire, and their location. Risks and hazards are evaluated to decide whether the existing fire precautions are adequate, or whether more action needs to be taken.

Fire Protection Officers will audit the fire risk assessments relating to any premises and on conclusion of the premises' audit the 'responsible person' will be notified of their compliance level. The Fire Protection Officers may then use a number of their powers to rectify any concerns. These powers range from possible prosecution, notification of defects to be rectified or simply educating and informing.

The government recommends that fire risk assessments be done professionally. There are a number of health and safety and fire risk companies that have professionals trained to do the assessments.

It is a breach of the Law if a business or landlord cannot produce a fire risk assessment to a Fire Protection Officer on request.

Martin Garner

The Companies Act 2006 should be borne in mind by directors.

The majority of its provisions will come into force by October 2008, but best practice suggests you should adopt a new approach now.

Here are a few quick tips:

DIRECTORS‘ DUTIES

A director is now told to

• act in good faith to promote the success of the company for the benefit of shareholders;
• remember employee interests, business relationships with suppliers and customers, community and environmental interests and the consequences of any decisions in the long term; and
• comply with the director’s duties of skill and care which have been set out in the Act.

However, it is not clear who has the right to sue if something goes wrong. Possibly guidance can be seen from the Human Rights legislation, such that if anyone considers their human rights have been infringed, they have a legal remedy.

Directors should take care that a floodgate of claims is not commenced if they do not follow this simple guidance.

There already exist powers to prosecute directors for wrongful trading, but it is not clear if this increased duty of care carries any consequences in favour of the shareholders and employees if the business simply fails and they lose their investment.

STREAMLINED PROVISIONS FOR PRIVATE COMPANIES

In order to ease administration private companies

• no longer require a company secretary
• in certain circumstances private companies may now give financial assistance in connection with the purchase of their own shares
• may also reduce their share capital without court approval.

Keith Cutler

Many firms of solicitors advertise 'SFLA/Resolution Members' or 'SFLA/Resolution accredited'. This reference can be inadvertently misleading.

Firms are NOT members, nor are they accredited.

It is an individual solicitor who may be a member and may be accredited. In other words, one person in a firm may be a member or accredited. Most firms have no more than one solicitor member - even if they have several other 'family' solicitors who are not members, nor even very experienced!

We have 5 accredited specialists within our Family department,who, between them have over 100 years experience.

To be more precise:

• Glynis Crowe is an accredited member of the SFLA/Resolution AND a member of the Law Society Children panel (an expert specialist in child care work).
• Cathy Lowndes is an accredited member of the SFLA/Resolution AND a member of the Law Society Children panel (an expert specialist in child care work).
• Jane Wilson is an accredited member of the SFLA/Resolution AND a solicitor-advocate with Rights of Audience in the Higher Courts (most solicitors do not have these rights).
• Kay Masters is an accredited member of the SFLA/Resolution
• Chris Dodd is a member of the Law Society Family Law panel, who has also been appointed as a Advanced member (equivalent to accreditation)

We do not know of ANY firm in the North West of England with a greater number of accredited specialists.

There are few, if any, problems that one or other of our specialists lawyers have not come across before. We aim to work as a Team. Many specialist heads are better than one!

Q. Have you signed an Enduring Power of Attorney (EPA)?

A. Everyone over the age of 18 should make one if they have a trusted person or people in their lives.

Q. What does it do?

A. It is a legal document which allows you to choose a trusted person or persons, known as an Attorney(s) to act on your behalf in relation to your financial affairs and property.

Q. Can it be used straightaway and whilst I have full mental capacity?

A. If you wish it to - yes. It can be very useful, for example if you were in hospital for a while your Attorneys, at your request, could use your bank account to pay your bills. Once you are better you could take full charge again.

Q. What if I lose mental capacity and I can no longer deal with my financial affairs?

A. Your Attorneys will be able to act for you once the EPA has been registered with the Court of Protection, which is a straight forward procedure.

Q. What if I haven't signed one and I am no longer able to deal with my financial affairs?

A. Many people believe that a close family member can act, but this is not true! Without an EPA there is NO-ONE legally in place to act and someone will have to apply to the Court of Protection to be appointed as Receiver. It is expensive, time consuming and long winded - not to mention the emotional cost and so it is best avoided if at all possible.

Q. But time is running out?

A. Yes -from Autumn 2007 no new EPAs can be made. Only those who have already signed an EPA will be able to keep and use them.

Q. Why?

A. The Mental Capacity Act 2005 will come into force and replace EPAs with Lasting Powers of Attorney (LPAs). LPAs have positive and negative sides. On the positive side it will be possible to appoint attorneys to act not only in relation to finance and property, but also health, welfare and end of life decisions. On the negative side they will be a more complex document than EPAs to make. They are expected to be at least 25 pages long and must be registered with the Public Guardian before use. It is expected they will cost significantly more than an EPA to make. EPAs are less complex and can be used in many situations without the involvement of the Court of Protection or the payment of additional fees.

Q. What should I do?

A. Don’t wait! Get legal advice now from Hall Smith Whittingham ^LLP

The Employment Equality (Age) Regulations came into force on the 1st of October 2006 with the aim of reducing discrimination in the workplace. It adds to existing legislation relating to discrimination on the grounds of sex, race, disability, sexual orientation, and ethnic origin, and harassment.

Employers will no longer be able to discriminate on the grounds of age when advertising jobs, making offers of employment, agreeing terms of employment, considering workers for promotion or training, determining dismissals or subjecting a person to any other disadvantage in the workplace due to their age (whether young or old).

Potentially discriminatory conduct by an employer is not always unfair. Age discrimination can be lawful if it is a proportionate means of achieving a legitimate business aim.

The Regulations introduce a default retirement age of 65. Employers who operate a retirement age lower than 65 will have to objectively justify it. To enforce retirement at 65 years or above, the employer will have to give the employee notification of his right to request not to retire on the intended date of retirement. The employee can take up his right by giving the employee counter notice. If he does so, the employer must arrange a meeting to discuss the matter. If the employer follows this procedure then any dismissal is automatically fair. If the employer fails to do so then any dismissal is potentially unfair.

The Department for Trade and Industry have estimated that workers will bring approximately 8000 claims in the next year alone and there is no limit on the amount of compensation which an Employment Tribunal can award in respect of age discrimination.

Sarah Beddows

Buying and selling of Companies is commonplace.

Sales occur for a variety of reasons including:-

• as part of strategic planning by the shareholders to realise the investment at an optimum price with certain tax advantages.
• to facilitate diversification or expansion
• in circumstances brought about through the terms of a shareholder’s agreement or cross-option agreement.

The finance to fund an acquisition may be found from a number of sources such as:-

• Business Centres of many banks provide loans secured against the assets of the company
• the purchaser providing loan notes (an ‘I owe you’) repayable over a certain term to the seller; this is known as deferred consideration
• corporate finance raised through specialist finance companies.
• ‘Earn out‘ a method of selling the company with the seller maintaining their involvement. Usually the seller is paid a multiple of the companies profit over a number of years on a sliding scale until the purchase price is met

Once the terms of the purchase have been agreed in general the solicitors acting for both parties draft a number of documents to formalise the transaction including:-

• Share Purchase Agreement (SPA) which sets out the terms and conditions of the purchase of the company and provides a number of warranties and indemnities from the seller to the purchaser.
• Disclosure Letter in which the seller details facts about the company
• Tax Deed in which the seller indemnifies the buyer against certain tax liabilities of the company
• Various minutes and resolutions
• Directors resignation letters
• Stock Transfer forms
• Various form for filing at companies house

Warranties

• Are essentially statements of fact about the company providing assurance to the buyer with regards to the sate of the company.
• If incorrect, the seller may be sued for any loss suffered by a buyer as a result.
• The seller in turn may make disclosures against warranties to inform the buyer of any warranties that cannot be given at all or in part.

Indemnities

• Are contractual promises in relation to a certain risks, which the buyer is aware.
• The seller will repay to the buyer any loss suffered by the buyer if the risk materialises.

Once the documents are agreed and funding is in place:-

• The SPA is exchanged between the parties and normally at this time a deposit is paid.
• Some time after exchange, the SPA (and therefore the transaction) is completed at which point:-
  • The purchase price is paid to the buyer
  • The seller receives the stock transfer forms
  • New directors and company secretary are appointed
  • The directors and company secretary resign
  • The various forms are filed at companies house

The process may appear daunting, however we have the experience and resources to guide you through step by step. Once the decision is made to sell or buy we are on hand to assist until and beyond completion.

Russell Bateman

This is a question on the lips of almost every single parent since plans for a new system were announced in July 2006. The answer is, at the present moment in time, nothing! The Child Support Agency will continue to function until late 2008 and therefore between now and then parents should continue to contact the Child Support Agency for advice and assistance about child maintenance.

What will happen in the future?
Plans are currently being made as to what will happen in late 2008 and the Government published a White Paper at the end of 2006 setting out their intentions, summarised as follows:

It is intended that the Child Support Agency will be replaced by a tougher and more streamlined organisation which will be called The Child Maintenance and Enforcement Commission.

The overall objectives are to reduce child poverty and deliver value for money to the taxpayer. It is intended that the way to achieve this is to create a new system, which will be simpler to use but will be able to apply tougher state intervention on those parents who do not meet their financial responsibilities to their children. Essentially, the new Commission will: -

• Encourage parents to agree their own arrangements and provide information and guidance to assist parents in achieving this.
• If parents fail to reach an agreement then the Commission will take responsibility for calculating, collecting and enforcing the payment of child maintenance.
• Finally, the Commission will send a clear signal that non-payment of child maintenance will not be tolerated. A couple of ways to achieve this have already been identified, including the surrender of the non-resident parent’s passport and imposing a curfew.

The significant difference between the old Child Support Agency and the new Commission will be it’s own internal set up i.e. The Child Maintenance and Enforcement Commission will be a Non-Departmental Public Body, which means that it will be run by an Independent Body and will therefore be more self-governing. Government Ministers will no longer have a role in the day-to-day decision-making, but will remain accountable to Parliament, provide annual funding and set high level performance targets.

Conclusion
Do not panic, there will be no immediate change and the current procedures will continue to operate until the new Child Maintenance and Enforcement Commission takes over in late 2008. At that point I expect there to be much media coverage to keep us all aware of the changes!

However, if you do require more information in the meantime, or indeed you wish to consider applying for maintenance now then do not wait until 2008, have a look or apply online at the Child Support Agency’s website: www.csa.gov.uk or contact the Child Support Agency direct on their National Helpline telephone number 08457 133 133 or Minicom (for those who are hard of hearing and have a minicom system) 08457 138 924. Lines are open 8:00am to 8:00pm Monday to Friday and 9:00am to 5:00pm on Saturday.

Tracey Gater

Here are some links:

The Law Society Family Law panel
Resolution/SFLA

Resolution (formerly the Solicitors Family Law Association - or SFLA) was set up by family Lawyers for family Lawyers.
The Law Society (Solicitor‘s governing body) set up the Family Law panel for the same reason.

Membership by a solicitors tells the public that the solicitor‘s work is primarly family work (doesn‘t dabble) and they have a real degree of experience and a positive and constructive approach to resolving family disputes.

Members of the Law Society Family Law panel (a complimentary body) are similarly experienced.

Accreditation is the process by which members can seek to demonstate more than experience - that he or she has specialised expertise. There is an open examination process, which is difficult and quite daunting.

Here‘s what the Law Society says:

Advanced members of the Family Law Panel can provide advice and assistance to clients in more-complex family law cases.

Family Law Panel members themselves should consider using advanced members of the panel to handle cases that may be beyond or outside their expertise.

Only solicitors and legal executives who successfully complete the Law Society‘s exacting accreditation process are permitted to join the panel. When you see the Family Law Panel Advanced logo, you‘ll know that the practitioner‘s skills, knowledge and experience have been rigorously and independently assessed.

Putting your home in trust to keep it out of the clutches of local authorities does not always work.

Introduction (a bit long but worth the read!)

We are continually contacted by client’s who have been advised by Will Writers that a way of protecting their home from being used to fund nursing care bills in the future is to put their home in trust, with their children as beneficiaries. This, client‘s are told will ensure that the properties value would not be taken into account if they ever needed nursing care.

Under current guidelines, people entering a residential home are assessed by their local authority to see if they can afford to pay their own fees. Although the state contributes to nursing bills, those whose total assets are worth more than £20,500 have to pay for everything else. As a result, people fear that there could be nothing left to pass on to their children with, the average place in a nursing home costing in excess of £25,000 a year.

However, simply giving away a home, or putting it in trust, is not guaranteed to keep it safe from the local authority's clutches. It could work in some cases, particularly if the property is transferred years before the need for care arises. But there are no guarantees.

Local authorities have a duty to judge whether people have "deliberately deprived" themselves of assets for this purpose. If they decide this is the case, they can - and do - refuse to pay care costs and register a charge against the property. There is no independent arbiter; the authority itself makes the decision.

The guidelines state that avoiding care costs does not even have to be the principal motive behind a property disposal, merely a significant factor. In this case the local authority can take the "notional value" into account when assessing a person's ability to pay fees. Councils can go back as far as they wish when making this decision.

Many clients‘ come to us and quote the 7-year rule however, this relates to inheritance tax. For example, if someone gives away assets in order to reduce their inheritance tax bill, the value of the gift is disregarded completely, so long as they survive a further seven years and do not retain any benefit or interest in the asset given away. This limit does not apply when assessing whether the motive was to avoid care fees.

However, Local Authority guidelines do state that "the timing of the disposal should be taken into account" when deciding whether a property was given away simply to avoid care costs. Although there is no time limit, the guidelines say: "It would be unreasonable to decide that a respondent had disposed of an asset in order to reduce the charge for his [nursing home] accommodation when the disposal took place at a time when he was fit and healthy and could not have foreseen the need for a move to residential accommodation."

However, different local authorities interpret these guidelines very differently. Some authorities will disregard disposals that have been made more than a year ago, while others will look much further back. With financial pressures on local authorities becoming ever greater, more vigilance is likely in future.

However, Hall Smith Whittingham would recommend caution from going down this route because local authorities have the power to take back property or assets they consider were given away purely to avoid having to pay care fees.

However, there are other options available to you, which, our Wills and Probate department can provide advice. Such options include:

• Holding the Property as Tenants in Common • NHS Funding • Temporary Stay Status” • Long-Term Care Insurance/Savings plan

(Alison Greatbanks)

The Spanish government has reduced the Capital Gains Tax rates for non-resident owners from 1st January 2007.
It reduces from 35% to 18%.

The 5% withholding tax previously levied against non-resident owners selling in Spain will reduce to 3%.

An application is in progress to the EU for a declaration that the previous descriminatory tax (resident owners were only charged at 15%) was unlawful. If the complaint is successful then those already charged at 35% may be entitled to a refund.

Tax on rents and profits received in Spain by non-residents has been reduced from 25% to 24%.

Good news all round.

Source:
Cornish & Co
Adogados
Avda. Ricardo Soriano 22,
Edificio Sabadell,
4°-6 29601 Marbella,
Malaga,
Spain
Telephone: +(34) 952 866830